IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-20106
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IN RE:
BILLY D. JACOBS, also known as Ya qub,
Petitioner.
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Petition for Writ of Mandamus
to the United States District Court
for the Southern District of Texas
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June 12, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the application of Billy D. Jacobs, a
Texas prisoner, requesting leave to proceed in forma pauperis
(IFP) under the Prison Litigation Reform Act of 1995 (PLRA), is
GRANTED,1 and Jacobs is ORDERED to pay an initial partial filing
fee of $1.832 when funds are available to him. Thereafter, he
1
The nature of the underlying action determines whether the
fee requirements of the PLRA are to apply in mandamus cases. In
re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997). Because the
underlying action here is a civil case, the PLRA fee requirements
apply. See 28 U.S.C. § 1915(b).
2
This amount represents 20% of Jacobs’s six-month average
balance as shown on the inmate trust fund account statement he
has submitted.
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must pay the balance of the $100 fee in monthly installments of
20% of the preceding month’s income credited to his inmate trust
fund account. The agency having custody of Jacobs is ORDERED to
forward funds from his account to the clerk of this court each
time the amount in the account exceeds $10, until the full filing
fee of $100 is paid. See 28 U.S.C. § 1915(b)(1), (2).
On February 14, 2000, we received from Jacobs a petition for
writ of mandamus asking that we compel the district court to
order service of process on the defendants in his civil rights
suit. On March 10, 2000, at the direction of this court, the
clerk informally advised Jacobs that his case was under active
consideration, that mandamus relief was not appropriate against
state officials, and that no ruling would be made on his petition
at that time. On March 31, 2000, we received from Jacobs a
response to that letter, titled “Motion for More Definite
Statement: Pursuant to F.R.C.P. 12(e),” with a series of
questions about the clerk’s letter. We also received Jacobs’s
“Motion for Judgment Pursuant to the F.R.C.P. 5(e), 9(e), 12(c),
and 77(c, d).” We construe the March 31 documents as a request
for a formal ruling on the mandamus petition.
The mandamus remedy is an extraordinary one, granted only in
the clearest and most compelling cases in which a party seeking
mandamus shows that no other adequate means exist to attain the
requested relief and that the right to the issuance of the writ is
"clear and indisputable." In re Willy, 831 F.2d 545, 549 (5th
Cir. 1987).
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Jacobs’s suit in District Court No. 4:98-CV-43293 was filed on
December 29, 1998. After he corrected a deficiency in the
pleading, he was granted leave to proceed IFP on May 18, 1999,
and the district court directed him to file a more definite
statement. Jacobs filed numerous pleadings, which the district
court either struck or denied on November 15, 1999; he filed
further pleadings, which the district court granted or denied on
December 21, 1999. Jacobs filed a more definite statement and a
second amended complaint on January 13, 2000, and a motion for
recusal of the district judge on March 31, 2000.
This civil rights action is under active consideration.
Contrary to Jacobs's assertion, he has no automatic entitlement
to service of process at this stage of the proceedings. We have
long recognized the authority of the district courts to ascertain
the potential frivolousness of IFP suits before directing service
of process, see Green v. McKaskle, 788 F.2d 1116, 1119-20 (5th
Cir. 1986), and this authority has been codified by the PLRA in
28 U.S.C. §§ 1915(e)(2) and 1915A.
It is evident from the docket sheet that the district court
is attempting to ascertain whether Jacobs’s suit will survive a
frivolousness determination and that Jacobs is hindering that
consideration by filing numerous non-responsive pleadings. In
3
Jacobs’s mandamus petition references three other pending
cases in the Southern District of Texas, Nos. 4:99-CV-754,
4:99-CV-1979, and 4:99-CV-2720. Because a mandamus petition may
reference only one district court action, we do not address
Jacobs’s allegations concerning these other suits. We note that
two of those cases have been the subject of other mandamus
petitions in this court, Nos. 00-20217 and 99-21118, which have
been administratively closed.
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such a circumstance, mandamus relief is inappropriate, and
Jacobs’s request that we direct the district court to order
service of process at this time is frivolous. The petition for a
writ of mandamus is therefore DISMISSED AS FRIVOLOUS.
We have previously held that a mandamus petition of this
type is “not an independent civil action, but may be considered a
type of appeal” for purposes of applying the fee provisions of
§ 1915(a)(2). In re Stone, 118 F.3d at 1034.4 We have also held
that the three-strikes provision of the PLRA, 28 U.S.C.
§ 1915(g), applies to mandamus petitions arising from underlying
civil actions such that a litigant who has accumulated three such
strikes may not proceed under the PLRA, but must prepay the
filing fee. See In re Crittenden, 143 F.3d 919, 920 (5th Cir.
1998). The operative language of § 1915(a)(2) (“a prisoner
seeking to bring a civil action or appeal a judgment in a civil
action or proceeding”) is identical to that of § 1915(g) (“In no
event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding” if he has accumulated three
strikes). We now hold that, if a mandamus petition arising from
an underlying civil case is dismissed as frivolous, that
dismissal counts as a “strike” for purposes of § 1915(g).
Accordingly, Jacobs is hereby informed that the dismissal of
this mandamus action as frivolous counts as a strike for purposes
of § 1915(g). We caution Jacobs that once he accumulates three
4
See also Santee v. Quinlan, 115 F.3d 355, 335 (5th Cir.
1997) (holding that the fee provisions of § 1915(a)(2) apply to
mandamus actions that arise from civil actions in district
court).
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strikes, he may not proceed IFP either in any civil action or in
any appeal of a civil action, including a mandamus petition
challenging district court action in an underlying civil suit,
which is filed while he is incarcerated or detained in any
facility, unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
IFP GRANTED; PETITION FOR MANDAMUS DISMISSED AS FRIVOLOUS;
THREE-STRIKES WARNING ISSUED.