(IFP) provision of the Prison Litigation Reform Act (PLRA) cannot be used
to dismiss a case when the plaintiff pays the filing fee. Thomas R.
Farese, a federal prisoner, filed two lawsuits: a civil rights case and a
Racketeer Influenced and Corrupt Organization Act (RICO) case which
stemmed from prior business relationships and litigation with his business
partner, Harold Dude.
Upon filing the RICO case, Farese paid the filing fee. When he later filed
the civil rights case he sought IFP status. The Southern Florida District
Court consolidated the two cases, and determined that upon consolidation
Farese was preceding IFP in both cases despite the filing fee having being
paid in the RICO case. The Court then applied 28 U.S.C. §1915(d) and held
Farese's cases had no basis in law or fact, which required dismissal under
the PLRA's IFP provision.
Farese appealed, contending the District Court erred when it dismissed his
fees-paid RICO case. The Eleventh Circuit found that §1915 applied only
in a lawsuit where the prisoner proceeds without prepayment of fees or
The appellate court held that the consolidation of Farese's cases did not
alter the fees-paid status of his RICO case. Because §1915 only governs
IFP proceedings, the District Court was not authorized to dismiss the RICO
claim under §1915. Accordingly, the dismissal of the RICO case was
vacated; however, the appeals court held the civil rights case was
properly dismissed and affirmed that part of the ruling. See: Farese v.
Scherer, 342 F.3d 1223 (11th Cir. 2003).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login