Matthew J. Sikora v. Robert Houston

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No. 96-1368 ___________

Matthew Joseph Sikora, Jr., * * Appellant, * * v. * Appeal from the United States * District Court for the Robert Houston, Warden, Lincoln * District of Nebraska. Correctional Center; John Does, * [Unpublished] * Appellees. *

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Submitted: March 22, 1996

Filed: April 19, 1996 ___________

Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges. ___________

PER CURIAM.

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.

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.

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.

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).

Accordingly, we reverse and remand.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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