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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 12, 2011
No. 09-5277
IN RE: DAVID KISSI,
PETITIONER
On Petition for Writ of Mandamus
No. 09-7067
IN RE: DAVID KISSI,
PETITIONER
On Petition for Writ of Mandamus
David Kissi, appearing pro se, was on the petitions for writ
of mandamus, the supplements thereto, the memorandum of law
and fact in support of the petitions, and the motions to proceed
in forma pauperis.
Before: GINSBURG, ROGERS, and BROWN, Circuit Judges.
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PER CURIAM: This court recently held that the filing fee
provision of the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(b), applies to a prisoner who files a petition for
writ of mandamus in connection with an underlying civil case.
In re Grant, 635 F.3d 1227, 1232 (D.C. Cir. 2011). The
question now before the court is whether the PLRA’s three-
strikes provision, 28 U.S.C. § 1915(g), likewise applies to a
mandamus petition in an underlying civil case. For the
following reasons, we hold that it does.
I.
David Kissi was incarcerated when he petitioned this court
for writs of mandamus to prevent the district court from
transferring two of his civil cases to the United States District
Court for the District of Maryland. See Kissi v. Simmons, No.
09cv1452 (D.D.C. July 31, 2009) (complaint seeking $1 billion
in damages for alleged violations of 42 U.S.C. § 1983 and
criminal statutes); Kissi v. Mead, No. 08cv2031 (D.D.C. June
10, 2009) (complaint seeking $10 million in damages for alleged
“conspiracy and racketeering”). In both mandamus proceedings,
Kissi moved this court for leave to proceed in forma pauperis.
Consideration of the petitions for writ of mandamus and the
motions for leave to proceed in forma pauperis were held in
abeyance pending the court’s decision in Grant.
In Grant, the court held that a prisoner must pay the
appellate filing fee for a mandamus petition related to an
underlying civil case pending in the district court. Generally, to
comply with the PLRA’s filing fee provision, a prisoner must
submit a trust account statement and consent to collection of
filing fees, pay an initial partial fee assessed by the court, and
continue to make installment payments from his trust account.
28 U.S.C. § 1915(b)(1)–(2). Section 1915(g), however, renders
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certain prisoners ineligible to pay the filing fee in installments,
for it provides:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Consequently, a prisoner who has filed at
least three civil actions or appeals meeting these criteria is
ineligible to proceed in forma pauperis and must pay in full the
appellate docketing and filing fees before the court will entertain
any other civil action or appeal, unless the prisoner qualifies for
the “imminent danger” exception, see Ibrahim v. District of
Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006).
Because it appeared that Kissi had filed at least three civil
actions meeting the criteria of section 1915(g) (such actions are
known as “strikes”), the court, citing Grant, ordered him to
show cause why he should not be required to pay in full the
appellate fees before the court would consider his mandamus
petitions. See Order to Show Cause, In re Kissi, No. 09-5277
(D.C. Cir. Apr. 19, 2011); Order to Show Cause, In re Kissi, No.
09-7067 (D.C. Cir. Apr. 19, 2011). The Orders cited: Kissi v.
Pramco II, LLC, No. 1:08cv553 (W.D.N.Y. Nov. 10, 2008)
(dismissing complaint with prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii) “as frivolous and malicious, and for
failure to state a claim upon which relief can be granted”); Kissi
v. Clement, No. 4:08-1784, 2008 WL 7526326 (N.D. Ohio Oct.
3, 2008) (dismissing action pursuant to 28 U.S.C. § 1915(e) and
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enjoining Kissi from filing any new lawsuits without leave of
court because of his pattern of filing “patently frivolous and
vexatious” complaints); Kissi v. Ammendale Trust, No.
2:08cv3574, 2009 WL 485179 (D.N.J. Feb. 26, 2009)
(dismissing complaint with prejudice for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)). Kissi, proceeding pro se,
has filed a response in each of the instant cases; the responses
are essentially the same and, for the most part, they do not
address the question whether section 1915(g) should be applied
to civil mandamus petitions.
II.
Although Grant did not concern the PLRA’s three-strikes
provision, its analysis is consistent with a broader reasoning that
section 1915(g) applies to mandamus petitions filed in
connection with underlying civil cases. The court reasoned in
Grant that the mandamus petition — which, as in this case,
began as a notice of appeal of a transfer order that this court
treated as a mandamus petition — was “‘realistically a form of
interlocutory appeal.’” 635 F.3d at 1230 (quoting Martin v.
United States, 96 F.3d 853, 854 (7th Cir. 1996)). Alternatively,
the court continued, if the mandamus petition were to be treated
as initiating a separate proceeding, the proceeding would be
deemed a “civil action.” Id. (citing In re Grand Jury Subpoena
Duces Tecum, 775 F.2d 499, 503 (2d Cir. 1985)). Regardless of
whether the mandamus petition was viewed as an appeal or a
civil action, the court concluded that PLRA’s filing fee
provision would apply. Id. at 1230–31. Similarly, because
Kissi’s mandamus petitions are either the functional equivalent
of appeals of the transfer orders or new civil actions, they fall
within section 1915(g)’s restrictions on a “civil action or appeal”
brought by a prisoner who has “three strikes.”
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The circuits to address this issue have accepted as self-
evident that if the PLRA’s filing-fee provision applies to
mandamus petitions that are essentially interlocutory appeals in
civil actions, then the three-strikes provision does as well. See
In re Crittenden, 143 F.3d 919 (5th Cir. 1998); In re Tyler, 110
F.3d 528, 529 (8th Cir. 1997); Green v. Nottingham, 90 F.3d 415
(10th Cir. 1996); cf. 4TH CIR. R. 21(c)(2) (applying “three
strikes” rule for prisoners seeking writs of mandamus,
prohibition, or other extraordinary relief). Neither petitioner nor
the court has identified any contrary authority.
Applying the three-strikes provision to a mandamus petition
in an underlying civil case is as faithful to the PLRA’s purpose
as applying the filing-fee provision. As the court explained in
Grant, the PLRA was designed to deter prisoners from filing
frivolous lawsuits, which waste judicial resources and
compromise “‘the quality of justice enjoyed by the law-abiding
population.’” 635 F.3d at 1230–31 (quoting 114 CONG. REC.
14,571 (1995) (statement of Sen. Dole)). Frivolous mandamus
petitions have the same effects on the courts as frivolous appeals
and therefore should subject prisoners filing such petitions to the
same economic costs. Kissi has not distinguished Grant in any
meaningful way and his assertions that he was the victim of
“U.S. judicial officers’ theft” and bias are irrelevant to the
question whether a three-striker filing a mandamus petition
should be treated any differently from a three-striker filing a
civil appeal.
Accordingly, we hold that Kissi’s mandamus petitions are
subject to the PLRA’s “three strikes” provision, 18 U.S.C
§ 1915(g), and, consequently, he is barred from proceeding in
forma pauperis. The underlying actions, which the district court
ordered transferred to Maryland, are civil in nature. Because
Kissi was incarcerated when he filed the instant mandamus
petitions, the PLRA applies. See In re Smith, 114 F.3d 1247,
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1251 (D.C. Cir. 1997). Also while incarcerated, Kissi received
at least “three strikes” prior to filing the mandamus petitions.
Kissi has not alleged that he is in imminent danger of serious
physical injury, so that exception under section 1915(g) is
inapplicable. Although Kissi appears to assert that his cases
involving the mortgage lender Pramco II, LLC, should not be
counted as “strikes” because he has newly discovered evidence
indicating that the judgments in those cases are “now
reversible,” he has not shown that the judgments in those cases
have been reversed. We therefore deny the motions for leave to
proceed in forma pauperis and order Kissi to pay the full fee in
each case before the court will consider his petitions.