1 The nature of the underlying action determines whether the

fee requirements of the PLRA are to apply in mandamus cases. In

re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997). Because the

underlying action here is a civil case, the PLRA fee requirements

apply. See 28 U.S.C. § 1915(b). 

2 This amount represents 20% of Jacobs’s six-month average

balance as shown on the inmate trust fund account statement he

has submitted.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 00-20106

________________________

IN RE:

BILLY D. JACOBS, also known as Ya qub,

 Petitioner.

- - - - - - - - - - - - - - - -

Petition for Writ of Mandamus

to the United States District Court

for the Southern District of Texas

- - - - - - - - - - - - - - - -

June 12, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the application of Billy D. Jacobs, a

Texas prisoner, requesting leave to proceed in forma pauperis

(IFP) under the Prison Litigation Reform Act of 1995 (PLRA), is

GRANTED,1 and Jacobs is ORDERED to pay an initial partial filing

fee of $1.832 when funds are available to him. Thereafter, he
No. 00-20106

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must pay the balance of the $100 fee in monthly installments of

20% of the preceding month’s income credited to his inmate trust

fund account. The agency having custody of Jacobs is ORDERED to

forward funds from his account to the clerk of this court each

time the amount in the account exceeds $10, until the full filing

fee of $100 is paid. See 28 U.S.C. § 1915(b)(1), (2).

On February 14, 2000, we received from Jacobs a petition for 

writ of mandamus asking that we compel the district court to

order service of process on the defendants in his civil rights

suit. On March 10, 2000, at the direction of this court, the

clerk informally advised Jacobs that his case was under active

consideration, that mandamus relief was not appropriate against

state officials, and that no ruling would be made on his petition 

at that time. On March 31, 2000, we received from Jacobs a

response to that letter, titled “Motion for More Definite

Statement: Pursuant to F.R.C.P. 12(e),” with a series of

questions about the clerk’s letter. We also received Jacobs’s

“Motion for Judgment Pursuant to the F.R.C.P. 5(e), 9(e), 12(c),

and 77(c, d).” We construe the March 31 documents as a request

for a formal ruling on the mandamus petition.

The mandamus remedy is an extraordinary one, granted only in

the clearest and most compelling cases in which a party seeking

mandamus shows that no other adequate means exist to attain the

requested relief and that the right to the issuance of the writ is

"clear and indisputable." In re Willy, 831 F.2d 545, 549 (5th 

Cir. 1987). 
No. 00-20106

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3 Jacobs’s mandamus petition references three other pending

cases in the Southern District of Texas, Nos. 4:99-CV-754,

4:99-CV-1979, and 4:99-CV-2720. Because a mandamus petition may

reference only one district court action, we do not address

Jacobs’s allegations concerning these other suits. We note that

two of those cases have been the subject of other mandamus

petitions in this court, Nos. 00-20217 and 99-21118, which have

been administratively closed.

Jacobs’s suit in District Court No. 4:98-CV-43293 was filed on

December 29, 1998. After he corrected a deficiency in the

pleading, he was granted leave to proceed IFP on May 18, 1999,

and the district court directed him to file a more definite

statement. Jacobs filed numerous pleadings, which the district

court either struck or denied on November 15, 1999; he filed

further pleadings, which the district court granted or denied on

December 21, 1999. Jacobs filed a more definite statement and a

second amended complaint on January 13, 2000, and a motion for

recusal of the district judge on March 31, 2000.

This civil rights action is under active consideration. 

Contrary to Jacobs's assertion, he has no automatic entitlement

to service of process at this stage of the proceedings. We have

long recognized the authority of the district courts to ascertain

the potential frivolousness of IFP suits before directing service

of process, see Green v. McKaskle, 788 F.2d 1116, 1119-20 (5th

Cir. 1986), and this authority has been codified by the PLRA in

28 U.S.C. §§ 1915(e)(2) and 1915A. 

It is evident from the docket sheet that the district court

is attempting to ascertain whether Jacobs’s suit will survive a

frivolousness determination and that Jacobs is hindering that

consideration by filing numerous non-responsive pleadings. In
No. 00-20106

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4 See also Santee v. Quinlan, 115 F.3d 355, 335 (5th Cir.

1997) (holding that the fee provisions of § 1915(a)(2) apply to

mandamus actions that arise from civil actions in district

court).

such a circumstance, mandamus relief is inappropriate, and

Jacobs’s request that we direct the district court to order

service of process at this time is frivolous. The petition for a

writ of mandamus is therefore DISMISSED AS FRIVOLOUS. 

We have previously held that a mandamus petition of this

type is “not an independent civil action, but may be considered a

type of appeal” for purposes of applying the fee provisions of 

§ 1915(a)(2). In re Stone, 118 F.3d at 1034.4 We have also held

that the three-strikes provision of the PLRA, 28 U.S.C.

§ 1915(g), applies to mandamus petitions arising from underlying

civil actions such that a litigant who has accumulated three such

strikes may not proceed under the PLRA, but must prepay the

filing fee. See In re Crittenden, 143 F.3d 919, 920 (5th Cir.

1998). The operative language of § 1915(a)(2) (“a prisoner

seeking to bring a civil action or appeal a judgment in a civil

action or proceeding”) is identical to that of § 1915(g) (“In no

event shall a prisoner bring a civil action or appeal a judgment

in a civil action or proceeding” if he has accumulated three

strikes). We now hold that, if a mandamus petition arising from

an underlying civil case is dismissed as frivolous, that

dismissal counts as a “strike” for purposes of § 1915(g).

Accordingly, Jacobs is hereby informed that the dismissal of

this mandamus action as frivolous counts as a strike for purposes

of § 1915(g). We caution Jacobs that once he accumulates three
No. 00-20106

-5-

strikes, he may not proceed IFP either in any civil action or in

any appeal of a civil action, including a mandamus petition

challenging district court action in an underlying civil suit,

which is filed while he is incarcerated or detained in any

facility, unless he is under imminent danger of serious physical

injury. See 28 U.S.C. § 1915(g). 

IFP GRANTED; PETITION FOR MANDAMUS DISMISSED AS FRIVOLOUS;

THREE-STRIKES WARNING ISSUED.