Matthew Joseph Sikora, Jr. v. Robert Houston, Warden, Lincoln Correctional Center John Does , 82 F.3d 421 ( 1996 )

82 F.3d 421

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
Matthew Joseph SIKORA, Jr., Appellant,
v.
Robert HOUSTON, Warden, Lincoln Correctional Center; John
Does, Appellees.

No. 96-1368.

United States Court of Appeals, Eighth Circuit.

Submitted March 22, 1996.
Filed April 19, 1996.

Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges.

PER CURIAM.

1

Matthew Sikora, a Nebraska inmate, appeals from the district court's 28 U.S.C. § 1915(d) dismissal of his 42 U.S.C. § 1983 claim alleging prison officials and prison medical staff violated his constitutional rights. We reverse and remand.

2

The magistrate provisionally granted Sikora leave to proceed in forma pauperis (IFP) pending receipt of Sikora's trust account statements. Upon review of the statements, the magistrate ordered Sikora to pay a partial filing fee. The magistrate also granted Sikora leave to amend his complaint to explain how claims in this particular action were not duplicative of claims raised by Sikora in two other suits pending before the court. Sikora paid the fee and filed an amended complaint.

3

After reviewing the amended complaint, the magistrate recommended dismissal pursuant to section 1915(d). Without mentioning Sikora's payment of the partial filing fee, the magistrate concluded that, as the claims in Sikora's amended complaint were frivolous and duplicative, his provisional IFP status should be revoked and his action dismissed. The district court adopted the magistrate's recommendation.

4

The district court acted improperly in ordering Sikora to pay a partial filing fee before determining whether his complaint was frivolous; after Sikora paid the court-ordered filing fee his complaint had to be treated as if it were a paid complaint. See In re: Funkhouser, 873 F.2d 1076, 1077 (8th Cir.1989) (per curiam) (a court may not require plaintiff to first pay fee and then later dismiss complaint as frivolous).

5

Accordingly, we reverse and remand.