United States Court of Appeals
For the Eighth Circuit
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No. 15-1286
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Coy R. Phelps,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Loretta E. Lynch, U.S. Attorney General*; Charles Samuels, FBOP Chief
Administrative Officer; Linda Sanders, Warden; United States of America,
lllllllllllllllllllll Defendants - Appellees.
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: April 29, 2015
Filed: May 26, 2015
[Unpublished]
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Before COLLOTON, BYE, and SHEPHERD, Circuit Judges.
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PER CURIAM.
*
Loretta E. Lynch is automatically substituted for Eric H. Holder. Fed. R. App.
P. 43(c)(2).
Coy Phelps was committed to the custody of the Attorney General after he was
found not guilty of federal criminal offenses by reason of insanity in 1986. See 18
U.S.C. § 4243. Phelps is detained at the United States Medical Center in Springfield,
Missouri.
In November 2014, Phelps filed a pro se, fee-paid civil complaint in the district
court, claiming violations of his constitutional rights. The district court reviewed the
complaint before service of process and initially dismissed some of Phelps’s claims
on the ground that they should have been asserted in a pending habeas corpus case.
The court also ordered Phelps to amend his complaint. Phelps did not amend his
complaint. Instead, he filed a motion requesting reconsideration of the order to
amend, and providing reasons for the request. The district court then entered another
preservice order, this time dismissing the entire action without prejudice, pursuant to
Federal Rule of Civil Procedure 41(b), based on Phelps’s failure to comply with the
court’s previous order to amend. Phelps thereafter filed this appeal and paid the filing
fee.
We conclude that the initial preservice dismissal of claims was improper. Cf.
Hake v. Clarke, 91 F.3d 1129, 1131-32 (8th Cir. 1996) (per curiam). Phelps was not
a prisoner, as required for 28 U.S.C. § 1915A to apply, see Kolocotronis v. Morgan,
247 F.3d 726, 728 (8th Cir. 2001), and he had not sought leave to proceed in forma
pauperis, as required for 28 U.S.C. § 1915(e)(2)(B) to apply. In addition, the claims
were not subject to dismissal for lack of subject matter jurisdiction. See 28 U.S.C.
§ 1331. We further conclude that dismissal under Rule 41(b) was unwarranted,
because the district court lacked authority to conduct the underlying preservice
screening. See M.S. v. Wemers, 557 F.2d 170, 175 (8th Cir. 1977).
Accordingly, we vacate the judgment and remand for further proceedings.
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