McCaslin v. First National Bank

U.S. Court of Appeals for the Eighth Circuit
McCaslin v. First National Bank, 43 F.3d 1182 (8th Cir. 1994)

McCaslin v. First National Bank

Opinion of the Court

PER CURIAM.

These five consolidated appeals come before us following the district court’s dismissal of each case without prejudice for failure to pay a partial fihng fee imposed under 28 U.S.C. § 1915(d). For the reasons discussed *1183below, we reverse and remand for farther proceedings.

On January 4,1993, Bonnie MeCaslin, then a Nebraska inmate, filed nineteen actions simultaneously in the district court, along with applications to proceed in forma pauper-is (IFP). The magistrate judge initially denied MeCaslin’s IFP applications based on her institutional trust account balance. MeCaslin contested the magistrate judge’s account balance findings and submitted her trust account statements. Upon reconsideration, the magistrate judge ordered MeCaslin to pay $53.75 by May 20, 1993, based on a six-month average trust account balance of $215.51. MeCaslin again sought reconsideration to allow her to pay $53.75 for all nineteen cases, rather than $53.75 for each case. On February 8, 1993, the magistrate judge denied her motion to reconsider.

The magistrate judge then reviewed each of these five cases, and noted several substantive deficiencies in the complaints. The magistrate judge granted MeCaslin leave to file amended complaints to cure the deficiencies or risk dismissal, and deferred consideration on MeCaslin’s motions for appointment of counsel until after her amended complaints were filed, because “plaintiff has not yet met her burden of showing that [each] ease is not frivolous.” MeCaslin subsequently filed amended complaints in each ease. On May 28, 1993, the district court sua sponte dismissed without prejudice the five cases for failure to pay the partial filing fee. The district court granted MeCaslin leave to proceed IFP on appeal.

We have expressly stated that “the magistrate or district court judge should determine whether plaintiffs may proceed in forma pau-peris in terms of whether the complaint was frivolous and warranted dismissal before ordering the plaintiffs to pay a partial filing fee.” In re Funkhouser, 873 F.2d 1076, 1077 (8th Cir. 1989) (per curiam) (citing Bryan v. Johnson, 821 F.2d 455, 458 (7th Cir. 1987)). We further stated that “[t]o require plaintiffs to first pay the fee and then later dismiss the case as frivolous is not contemplated by the Federal Rules of Procedure.” Id. The decision to dismiss for failure to pay the partial filing fee occurred here before the determination was made as to whether each case was frivolous under section 1915(d).

Accordingly, we remand these cases to the district court with instructions to consider McCaslin’s amended complaints for frivolousness under section 1915(d). For those claims found not to be frivolous, we leave to the district court’s discretion whether to reconsider the amount of the partial filing fee, in light of McCaslin’s current financial circumstances. See In re Williamson, 786 F.2d 1336, 1340-41 (8th Cir. 1986).

Reference

Full Case Name
Bonnie McCASLIN v. FIRST NATIONAL BANK, OF YORKMAIN BRANCH Kevin Henderson, Officer of the Bank Dale Adams, Officer of the Bank Housing Authority, of the City of York Robert Sylvester, Administrator of the Housing Authority of the City of York Kerri Naber, Administrative Assistant of the Housing Authority of the City of York John Doe, in their official and individual capacity, Appellees Bonnie McCASLIN v. FILLMORE COUNTY William L. Burgess, Sheriff of Fillmore County John Doe, in their official and individual capacity, Appellees Bonnie McCASLIN v. CITY OF HENDERSON, Nebraska County of York, Nebraska Dale Radcliff, Deputy Sheriff of York County Ted Perry, Former Chief of Police of Henderson, Nebraska, in their official and individual capacities, Appellees Bonnie McCASLIN v. John DOE Fillmore County William L. Burgess, Sheriff of Fillmore County Robert Higel, City Commissioner of Geneva, NE City of Geneva Water Dept. Fillmore County Development Co. Alfred Andrews, Pres. of Fillmore County Development Co. Lichti Brothers Oil Co., Inc. Lawrence Lichti, Owner of Lichti Bros. Oil Co. Tim Lichti, Employee of Lichti Bros. Oil Co., Inc., in their official and individual capacity, Appellees Bonnie McCASLIN v. U.S. POST OFFICE Postmaster General Hastings Post Office Leroy Lang, Employee of Hastings Post Office John Doe, in their official and individual capacity
Cited By
1 case
Status
Published