IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10017
Summary Calendar
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JO ANNE CARTER,
Plaintiff-Appellant,
versus
FMC CARSWELL MEDICAL REVIEW BOARD;
F. ARIOLLA, Dr., Physician at Carswell,
FMC; J. B. BOGAN, Warden, FMC Carswell;
BOATNER, Dr., Dentist; T. MUMMERT, Food
Administrator; V. ROSILEX, Assistant
Food Administrator; DEB CARROLL, Nurse
Manager,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
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June 12, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Jo Anne Carter, a federal prisoner housed
at the Federal Medical Center-Carswell (FMC-Carswell) in Fort
Worth, Texas, filed the instant civil rights complaint under 42
U.S.C. § 1983 against various officials and medical providers at
FMC-Carswell and a first amended complaint, alleging that the
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
conditions of her confinement violated her constitutional rights
and seeking three million dollars in damages. The district court
ordered that Carter pay a partial filing fee of $15. By order
entered October 30, 1995, the court dismissed Carter's action as
frivolous pursuant to 28 U.S.C. § 1915(d) "except insofar as it
relat[ed] to her complaints about inadequate medical or other care
for her gums and claustrophobia." The court ordered Carter to file
an amended complaint elaborating on her claims of inadequate
medical care if she intended to proceed with the action.
Carter filed a second amended complaint in response to the
district court's order naming as defendants only the FMC-Carswell
Medical Review Board; Dr. C. Boatner, dentist; and Dr. Batchelder,
psychologist. Carter alleged that the defendants were negligent in
attending to her dental needs and to her claustrophobia.
By order and judgment entered November 15, 1995, the district
court dismissed Carter's complaint without prejudice as frivolous,
reasoning that the complaint alleged a violation of the Federal
Tort Claims Act (FTCA) and Carter failed to exhaust her
administrative remedies. Carter filed a timely notice of appeal
from that judgment. The district court ordered that Carter proceed
IFP on appeal upon payment of a partial filing fee.
Carter argues that the district court abused its discretion in
dismissing some of the claims she alleged in her original complaint
as frivolous, particularly since the court charged her a filing
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fee.1 A district court may not dismiss a plaintiff's complaint as
frivolous after requiring the plaintiff to pay a partial filing
fee. Grissom v. Scott, 934 F.2d 656, 657 (5th Cir. 1991). The
district court's dismissal of Carter's claims, as frivolous, after
the court required her to pay a $15 filing fee was therefore
erroneous. We thus VACATE the district court's dismissal and
REMAND the case to the district court for further proceedings.
VACATED and REMANDED.2
1
Carter's "Motion to Appeal" indicates her intent to appeal
both the October 30, 1995 order and the court's order and judgment
of November 15, 1995. See R. 216-21. Therefore, Carter's notice
of appeal should be construed as placing before the court each of
the district court's adverse rulings, including its October 30,
1995 order dismissing portions of Carter's complaint. See Satcher
v. Honda Motor Co., Ltd., 984 F.2d 135, 137 (5th Cir.) (citing
Moore's Federal Practice § 203.17[2]; appeal from final judgment
draws into question and allows attack on all prior non-final orders
and all rulings that produced judgment), vacated on other grounds,
993 F.2d 56 (5th Cir. 1993).
2
Carter has filed with this court a "Motion for Relief" and a
"Motion to speak to the court/ Motion to clarify relief sought."
These motions are denied.
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