In Re Louis Elton Stone, 118 F.3d 1032 (5th Cir. 1997). · Go Syfert
In Re Louis Elton Stone, 118 F.3d 1032 (5th Cir. 1997). Cases Citing This Book View Copy Cite
48 citation events (40 in the last 25 years) across 12 distinct courts.
Strongest positive: Oliver v. 241st District Court (txnd, 2024-08-21)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
discussed Cited as authority (rule) Oliver v. 241st District Court (2×) also: Cited "see, e.g."
N.D. Tex. · 2024 · confidence medium
In re Crittenden, 143 F.3d 919, 920 (5th Cir. 1998) (per curiam) (quoting In re Stone, 118 F.3d 1032, 1033 (5th Cir. 1997)); see, e.g., In re Jacobs, 213 F.3d 289, 289 (5th Cir. 2000) (per curiam) (“The nature of the underlying action determines whether the fee requirements of the PLRA are to apply in mandamus cases. [If] the underlying action [ ] is a civil case, the PLRA fee requirements apply.” (citations omitted)).
discussed Cited as authority (rule) Hyder v. Ivey
S.D. Tex. · 2023 · confidence medium
Because Hyder is a state prisoner, his action, whether construed as a mandamus petition or a civil rights complaint, is subject to the Prison Litigation Reform Act (PLRA), which imposes a payment obligation “on prisoners desiring to appear in forma pauperis in certain proceedings.” In re Stone, 118 F.3d 1032, 1033 (5th Cir. 1997); see also 28 U.S.C. § 1915 (b).
discussed Cited as authority (rule) Johnson v. U.S. Postal Service
S.D. Tex. · 2023 · confidence medium
DISCUSSION _ Because Johnson is a state prisoner, his action is ‘subject to the Prison Litigation Reform Act (PLRA), which, in pertinent part, imposes a payment burden “on prisoners desiring to appear in forma pauperis in certain proceedings.” In re Stone, 118 F.3d 1032, 1033 (Sth Cir. 1997); see also 28 U.S.C. § 1915 (b).
discussed Cited as authority (rule) Bailey v. Rood
M.D. Tenn. · 2023 · signal: cf. · confidence medium
Cf. In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997) (holding that, because the PLRA does not apply to habeas corpus proceedings, a mandamus petition arising out of a § 2255 action was not subject to the fee-payment requirements of the PLRA).
discussed Cited as authority (rule) Pullens v. Schatz
D. Neb. · 2021 · confidence medium
Cir. 2011) (applying PLRA to mandamus petitions when the underlying action is civil); In re Stone, 118 F.3d 1032, 1033-34 (Sth Cir. 1997) (same); Jn re Tyler, supra (same); cf: Madden v. Myers, 102 F.3d 74, 76-77 (3d Cir. 1996) (holding that mandamus actions are categorically not “civil actions”).
discussed Cited as authority (rule) Inland Family Practice Center, LLC v. Azar
S.D. Miss. · 2021 · confidence medium
Rather, “[t]he petitioner must demonstrate (1) a clear right to the relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy.” In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997).
cited Cited as authority (rule) Cruse v. Ms. Dept. of Corrections
N.D. Miss. · 2021 · confidence medium
In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997).
discussed Cited as authority (rule) Mallory v. Municipal Court of Tupelo, MS
N.D. Miss. · 2019 · confidence medium
Moreover, for Mallory to be entitled to mandamus relief, he must “demonstrate (1) a clear right to the relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy.” In re Stone, 118 F.3d 1032, 1034 (Sth Cir. 1997).
discussed Cited as authority (rule) Reich v. Berryhill
N.D. Tex. · 2019 · confidence medium
However, mandamus is “an extraordinary remedy” and a plaintiff “must establish ‘(1) a clear right to relief, (2) a clear duty by the [defendant] to do the act requested, and (3) the lack of any other adequate remedy.’” Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir. 1998) (quoting In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997)).
discussed Cited as authority (rule) Washington v. Los Angeles County Sheriff's Department
9th Cir. · 2016 · confidence medium
Cir. 2011) (applying PLRA to mandamus petitions when the underlying action is civil); In re Stone, 118 F.3d 1032, 1033-34 (5th Cir. 1997) (same); In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (same); cf. Madden v. Myers, 102 F.3d 74, 76-77 (3d Cir. 1996) (holding that mandamus actions are categorically not “civil actions”).
discussed Cited as authority (rule) Offiiong v. Holder
S.D. Tex. · 2012 · confidence medium
Mandamus relief is only proper where the plaintiff demonstrates “(1) a clear right to the relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy.” Id., citing Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 , 101 S.Ct. 188 , 66 L.Ed.2d 193 (1980), and In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
discussed Cited as authority (rule) Frederic Scott v. New
5th Cir. · 2010 · confidence medium
The writ of mandamus is an extraordinary remedy available only where the petitioner establishes “(1) a clear right to the relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy.” In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
cited Cited as authority (rule) Clark v. USA
5th Cir. · 2004 · confidence medium
In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
discussed Cited as authority (rule) United States v. Pedroza (2×) also: Cited "see"
5th Cir. · 2004 · confidence medium
The writ of mandamus is an extraordinary remedy available only where the petitioner establishes “(1) a clear right to the relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy.” In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997).
cited Cited as authority (rule) Keelen v. Federal Bureau of Investigation
5th Cir. · 2003 · confidence medium
In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
examined Cited as authority (rule) Trowbridge v. Dept of the Treasury (3×) also: Cited "see"
5th Cir. · 2002 · confidence medium
In re Stone, 118 F.3d at 1034 (citations omitted).
cited Cited as authority (rule) In Re: Jacobs
5th Cir. · 2000 · confidence medium
In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
cited Cited as authority (rule) Davis v. Fechtel
5th Cir. · 1998 · confidence medium
In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
discussed Cited as authority (rule) United States v. Bazemore
S.D. Ga. · 1997 · confidence medium
See also Newlin, 123 F.3d at 436 (§ 2254 & § 2255 proceedings are not § 1915(b) “civil actions”); McIntosh v. U.S. Parole Com’n., 115 F.3d 809, 812 (10th Cir.1997) ( 28 U.S.C. § 2241 proceedings and appeals therefrom are not “civil actions” under § 1915(a)(2) and (b)); In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997); Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir.1997).
discussed Cited "see" Finch v. 222nd Judicial District Court
N.D. Tex. · 2024 · signal: see · confidence high
See In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997) (holding that petition for writ of mandamus that arose from post-conviction habeas application was not subject to fee payment requirements of section 1915(b)).
discussed Cited "see" Powell v. Hodgkins
S.D. Tex. · 2024 · signal: see · confidence high
See In re Stone, 118 F.3d 1032, 1034 (Sth Cir. 1997) (providing that the PLRA fee requirements apply to mandamus petitions when the . yng action is a civil case.). _ . civil action in forma pauperis unless the pleadings show that he is in imminent danger of serious physical injury.
cited Cited "see" Walker v. Wilson
N.D. Tex. · 2022 · signal: see · confidence high
See In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997)(citations omitted).
discussed Cited "see" Yoo v. FBI NICS
N.D. Tex. · 2021 · signal: see · confidence high
See generally See In re Jacobs, 213 F.3d 289 , 290 n.1 (5th Cir. 2000) (“The nature of the underling action determines whether the fee requirements of the PLRA are to apply in a mandamus case”) (citing In re Stone, 118 F.3d 1032, 1033 (5th Cir. 1997)); see also In re Crittendon, 143 F.3d 919, 920 (5th Cir. 1998) (citing Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997)).
cited Cited "see" Roy Williams v. Texas Court of Criminal Appeal
5th Cir. · 2020 · signal: see · confidence high
See In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997); cf. In re Jacobs, 213 F.3d 289, 291 (5th Cir. 2000). 2
discussed Cited "see" Frederick Banks v. Mark Hornak
4th Cir. · 2017 · signal: see · confidence high
See In re Stone, 118 F.3d 1032 , 1034 & n.2 (5th Cir. 1997) (holding that, “[i]n a mandamus proceeding, ... the nature of the underlying action will determine the applicability of the PLRA,” such that petitions filed in underlying civil proceedings are “civil actions” but those filed in underlying criminal proceedings are not); Martin v. United States, 96 F.3d 853, 854-55 (7th Cir. 1996) (Posner, C.J.) (finding that, although Section 1651 petitions arising from underlying civil litigation are “civil actions,” petitions arising from criminal proceedings are “not a form of prisoner…
cited Cited "see" Parker v. Cain
5th Cir. · 2008 · signal: see · confidence high
See In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
cited Cited "see" Bell v. Joslin
5th Cir. · 2006 · signal: see · confidence high
See In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
cited Cited "see" Tubblebille v. Joslin
5th Cir. · 2006 · signal: see · confidence high
See In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997).
cited Cited "see, e.g." David Ray Adele v. Burl Cain, MDOC Commissioner, and Derrick Chambers, MDOC Deputy Commissioner
S.D. Miss. · 2025 · signal: see also · confidence medium
In re Crittenden, 143 F.3d 919, 920 (5th Cir. 1998); see also In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997). includes all religious sacraments and rites.
discussed Cited "see, e.g." In Re Grant
D.C. Cir. · 2011 · signal: compare · confidence medium
Compare In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997) (requirements apply to mandamus petitions only when the underlying action is civil), Martin v. United States, 96 F.3d 853, 854-55 (7th Cir.1996) (same), In re Tyler, 110 F.3d 528, 529 (8th Cir.1997) (requirements apply at least to petitions arising from "ongoing civil rights lawsuitfs]”), and Green v. Nottingham, 90 F.3d 415, 418 (10th Cir.1996) (requirements apply to all mandamus petitions), with In re Nagy, 89 F.3d 115 , 117 n. 2 (2d Cir.1996) (requirements only apply to petitions that are simply "alternative device[s]” for obtainin…
Retrieving the full opinion text from the archive…
In Re Louis Elton STONE, Petitioner
97-00013.
Court of Appeals for the Fifth Circuit.
Jul 18, 1997.
118 F.3d 1032
Louis Elton Stone, Eglin AFB, FL, pro se., David Hittner, U.S. District Judge, Houston, TX, pro se.
Wiener, Parker, Little.
Cited by 35 opinions  |  Published
LITTLE, District Judge:

Louis Elton Stone (“Stone”), a federal prisoner, petitions this court under 28 U.S.C. § 1651(a) for a writ of mandamus prohibiting the district judge from improperly influencing an administrative review of the calculation of his sentence. Determining that the recent amendments to the Prison Litigation Reform Act (“PLRA”) do not apply to this proceeding, we, nonetheless, find that Stone has not demonstrated an entitlement to the writ. The petition is denied.

FACTS AND PROCEEDINGS BELOW

Stone was convicted in the United States District Court for the Southern District of Texas on 20 November 1990 on drug related charges. On 7 February 1991, the trial judge sentenced Stone to 121 months of in[*1033] carceration, allowing credit for the time served in state custody since 1989.

Stone began serving his federal sentence in April 1991. Finding that federal custodianship was in error, the petitioner was transferred to the Texas Department of Corrections in November 1993. When Stone was released from state prison and returned to the custody of the Federal Bureau of Prisons on 18 January 1995, his release date was changed from July 1999 to November 2003. Arguing that 1999 was the proper date because he was entitled to credit for the time spent in state custody, Stone brought a proceeding pursuant to 28 U.S.C. § 2255 to correct his sentence.

Finding that only the United States Attorney General may grant credit for time served in state custody, the district judge denied Stone’s post-conviction relief. Stone then attempted to correct his sentence through an administrative proceeding with the Attorney General’s office. Stone alleges that in the course of the administrative review, the Attorney General, through the Bureau of Prisons, sought direction from the trial judge and that the judge improperly influenced the decision by the Bureau of Prisons. Complaining that the trial judge’s interference caused the Bureau to deny the correction of his sentence, the petitioner submitted the instant writ of prohibition to this court to direct the trial judge to refrain from influencing the administrative review process.

In his petition for a writ of prohibition, also referred to as mandamus, pro-se petitioner Stone seeks to proceed in forma pauperis (“IFP”) and contends that the Prison Litigation Reform Act (“PLRA”) does not apply to his application for IFP status. Before we may reach the merits of the petition, the court must first address the applicability of the PLRA.

ANALYSIS

I. Applicability of the PLRA

The PLRA amended 28 U.S.C. § 1915 to impose new filing burdens on prisoners desiring to appear IFP in certain proceedings. “A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding” is subject to the financial disclosure rules of § 1915 and must pay the full filing fee. 28 U.S.C. § 1915(a)(2), (b)(1),(2). The issue presented in this case is whether Stone’s petition for mandamus is a civil action or an appeal, and therefore subject to the provisions of the PLRA. Five other circuits [1] have passed on whether the PLRA applies to mandamus proceedings, and we first addressed this question in Santee v. Quinlan. Santee v. Quinlan, 115 F.3d 355 (5th Cir.1997).

A. Characterization of the writ of mandamus

The plain language of the statute does not expressly encompass a writ of mandamus. The Fifth Circuit has referred to mandamus as a “remedy,” In re First South Sav. Ass’n, 820 F.2d 700, 706 (5th Cir.1987), that is available upon proof of certain “elements,” United States v. O’Neil, 767 F.2d 1111, 1112 (5th Cir.1985). Although such terms suggest that mandamus is a separate action, this circuit has also described the writ as a method of “supervisory control of the district courts.” United States v. Comeaux, 954 F.2d 255, 261 (5th Cir.1992). In further support of the notion of mandamus as a form of appeal, a panel of the Fifth Circuit held that a court of appeals must have an independent basis of jurisdiction over the matter because “the writ [of mandamus] must issue ‘in aid of that jurisdiction.” Hamilton v. Morial, 644 F.2d 351, 354 (5th Cir.1981).

There is no uniform notion of the writ among the other circuits, but most consider it to be a form of appeal. The Third Circuit classified mandamus as “a procedural mechanism,” Madden v. Myers, 102 F.3d 74, 77, (3d Cir.1996), available to courts of appeal “only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction.’ ” Id. at n. 3 (quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 272, 19 L.Ed.2d 305 (1967)). When the writ is brought against the trial[*1034] judge in a petitioner’s case, the Seventh Circuit considered mandamus to be an interlocutory appeal. Martin v. United States, 96 F.3d 853, 854 (7th Cir.1996); accord In re Tyler, 110 F.3d 528, 529 (8th Cir.1997). The Tenth Circuit similarly characterized it as “an aid of appellate jurisdiction,” and “part of the litigation of a case.” Green v. Nottingham, 90 F.3d 415, 417 (10th Cir.1996); accord Tyler, 110 F.3d at 529.

This circuit’s approach in Comeaux and Hamilton, as well as the majority of other circuits, convince us that the mandamus petition in this case is not an independent civil action, but may be considered a type of appeal. This does not end our inquiry, however, as the PLRA only applies to civil actions. In a mandamus proceeding, therefore, the nature of the underlying action will determine the applicability of the PLRA. [2]

B. Consideration of the underlying action

The Fifth Circuit, along with all other circuits that have considered the issue, [3] has found that the PLRA is inapplicable to habeas corpus proceedings under 28 U.S.C. § 2255. United States v. Cole, 101 F.3d 1076 (5th Cir.1996); see also Carson v. Johnson, 112 F.3d 818, 1997 WL 211800, (5th Cir. 1997).

Stone’s petition to this court arose out of a § 2255 petition for post-conviction relief. Respecting this circuit’s recent holding in Cole, we find that the mandamus petition in the instant case is not subject to the fee payment requirements of the PLRA.

II. Merits of the petitioner’s application

Mandamus is reserved for extraordinary circumstances. Kerr v. United States

Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976). The petitioner must demonstrate (1) a clear right to the relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy. O’Neil, 767 F.2d at 1112 (citations omitted); see also Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). In the instant case, we find that the petitioner has failed to make the requisite showing.

CONCLUSION

In this proceeding, Stone is not subject to the filing fee provisions of the' PLRA and, therefore, his IFP status is approved. The petition for a writ of mandamus is DENIED.

1

. In re Tyler, 110 F.3d 528 (8th Cir.1997); Madden v. Myers, 102 F.3d 74 (3d Cir.1996); Martin v. United States, 96 F.3d 853 (7th Cir.1996); In re Nagy, 89 F.3d 115 (2d Cir.1996); Green v. Nottingham, 90 F.3d 415 (10th Cir.1996).

2

. Our focus on the underlying action accords with the treatment of these cases by circuits viewing mandamus as an appeal. For example, both the Second and Seventh Circuits found the PLRA applicable where the underlying action is civil (e.g., a § 1983 action), but inapplicable to criminal litigation and habeas cases. In re Nagy, 89 F.3d at 117; Martin, 96 F.3d 854-855; but see Green, 90 F.3d at 418 (holding that all petitions for writs of mandamus are subject to the PLRA because to view the statute otherwise would "allow a loophole Congress surely did not intend in its stated goal”).

3

. The following cases have held that the PLRA is inapplicable to § 2255 proceedings: United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997); United States v. Levi, 111 F.3d 955 (D.C.Cir.1997); Martin v. United States, 96 F.3d 853 (7th Cir.1996); Santana v. United States, 98 F.3d 752 (3d Cir.1996). Similarly, the following cases found the PLRA inapplicable to habeas corpus proceedings under § 2254: Anderson v. Singletary, 111 F.3d 801 (11th Cir.1997); Smith v. Angelone, 111 F.3d 1126 (4th Cir.1997); Naddi v. Hill, 106 F.3d 275 (1997); Reyes v. Keane, 90 F.3d 676 (2d Cir.1996).