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In Re: Rogel Grant

February 22, 2011

IN RE: ROGEL GRANT, PETITIONER


Petition for Writ of Mandamus (No. 1:08cv0150)

The opinion of the court was delivered by: Randolph, Senior Circuit Judge:

Argued October 7, 2010

On Motion for Leave to Proceed In Forma Pauperis

Before: GARLAND, Circuit Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.

Opinion of the Court filed by Senior Circuit Judge RANDOLPH.

A jury in the Eastern District of Pennsylvania convicted Rogel Grant of two counts of distributing crack cocaine and one count of possession of crack cocaine with intent to distribute. The district court sentenced Grant to life imprisonment. He is currently incarcerated at the United States Penitentiary in Bruceton Mills, West Virginia.

After his conviction, Grant brought a civil complaint in the U.S. District Court for the District of Columbia against the Attorney General of the United States, the U.S. Attorney for the Eastern District of Pennsylvania and an Assistant U.S. Attorney in the Eastern District alleging a conspiracy to deprive him of his constitutional rights under the Fifth, Sixth and Fourteenth Amendments during the prosecution of his criminal case. On its own motion, the district court ordered Grant's civil action transferred to the U.S. District Court for the Eastern District of Pennsylvania.

Grant filed a notice of appeal of the transfer order with the district court pro se. The district court transmitted the notice to this court. Because transfer orders are not appealable, see Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 546 (D.C. Cir. 1992), we ordered that Grant's notice of appeal be construed as a petition for writ of mandamus. The order also directed Grant to pay the $450 docketing fee or to file a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Grant filed the motion. Our court referred it to the merits panel, appointed counsel to serve as amicus curiae for him and instructed the parties to address the question whether the filing-fee require- ments of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(b), apply to petitions for writs of mandamus.

Under 28 U.S.C. § 1915(a), "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor" by a person who demonstrates through an affidavit his inability to pay such fees or give security therefor. 28 U.S.C. § 1915(a)(1).*fn1

Proceedings authorized under this and similar provisions are said to be in forma pauperis. The origins of the statute reach back at least as far as 1892, Law of July 20, 1892, ch. 209, 27 Stat. 252, and the origins of the practice further still, see ROGER FOSTER, A TREATISE ON FEDERAL PRACTICE IN CIVIL CAUSES § 200 (1892).

In 1996, in the wake of a nearly six-fold increase in due process and cruel and unusual punishment prisoner complaints from 1975 to 1994, Congress amended § 1915 to impose additional obligations on prisoners seeking to proceed in forma pauperis. Subsection (b) now states that "if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). The subsection creates a payment schedule including prepayment of a portion of the fee, but provides that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee." Id. § 1915(b)(2)-(4).

The courts of appeals are divided about whether (and how) the requirements of subsection (b) apply to petitions for writs of mandamus.*fn2 The closest this court has come to addressing the question in a published opinion was In re Smith, where we held that the filing fee requirements apply to "a petition for a writ of prohibition that . . . includes underlying claims that are civil in nature." 114 F.3d 1247, 1250 (D.C. Cir. 1997).*fn3

Now that the question is directly before us, we hold that the filing-fee requirements of the PLRA apply to a petition for a writ of mandamus filed in connection with a civil proceeding in the district court. We agree with the Seventh Circuit that a mandamus petition in such a case "is realistically a form of interlocutory appeal." Martin, 96 F.3d at 854. Grant's petition began as a notice of appeal of the transfer order in his underly- ing civil action. It was only by order of this court that it was restyled a petition for a writ of mandamus. Our jurisdiction over an action in the district court is "exclusively appellate." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943). And our authority to issue writs of mandamus in connection with such actions is restricted to those that are "in aid of [our] appellate jurisdiction." Cheney v. U.S. District Court, 542 U.S. 367, 380 (2004) (quoting Roche, 319 U.S. at 26).

Even if we were to treat Grant's mandamus petition as initiating a separate proceeding, distinct from the underlying civil action, the filing-fee requirements would still apply because the new proceeding would itself be a "civil action." Cf. In re ...


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