McCaslin v. First National Bank , 43 F.3d 1182 ( 1994 )

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 below, 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).