This mоtion by an incarcerated prisoner for leave to proceed in forma pauperis requires us to determine whether the new fee requirements of the Prison Litigation Reform Act of 1995 (PLRA) apply to extraordinary writs, suсh as a petition for writ of mandamus, filed as an original action in this Court. We conclude that the PLRA requirements apply to those extraordinary writs that seek relief analogous to civil complaints under 42 U.S.C. § 1983, but not to writs directed at judges conducting criminal trials. Since the pending motion concerns a request for a writ of the latter variety, the PLRA requirements do not apply. We therefore grant the motion to proceed i.f.p. for the limited purpose of considering the petition for the writ, and since it has no merit, we deny the petition.
Facts
Paul Nagy is an incarcerated defendant in a criminal proseсution pending in the District Court for the Southern District of New York (Robert P. Patterson, Judge). Pursuant to 18 U.S.C. § 4241(a), Judge Pattersоn ordered a psychiatric examination to determine Nagy’s competence to stand triаl. Nagy’s motion to vacate the order was denied. He then filed a motion seeking to have Judge Patterson withdraw from his case. Thereafter, he filed the pending petition for a writ of mandamus in this Court, seеking to compel Judge Patterson to rule on his recusal motion and to have this Court order reassignmеnt of his ease. The petition was accompanied by a motion for leave to proсeed informa pauper-is.
Discussion
At the outset, we face the issue of whether the new filing fee payment requirements of the PLRA аpply to a petition for an extraordinary writ, such a writ of mandamus. If they do, we would apply the рrocedure outlined in our recent decision in
Leonard v. Lacy,
The PLRA, which was enacted as Title VIII of the Omnibus Consolidated Rescis-sions and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996), creates new filing fee payment obligations for incarcerated prisoners. We recently considered its provisions in Leonard, familiarity with which is assumed. The PLRA applies to a “civil action” and an appeal in a “civil action.” 28 U.S.C. § 1915(a)(2). Neither the text nor the legislative history of the PLRA indicates whether a petition for a writ of mandamus is to be сonsidered a “civil action” for purposes of the Act.
The Federal Rules of Civil Procedure state that writs of mandamus are abolished in favor of an appropriate motion, Fed.R.Civ.P. 81(b), but those rulеs apply only to the dis- *117 triet courts, Fed.R.Civ.P. 1. The Federal Rules of Appellate Procedure continue to authorize an application to a court of appeals for a writ of mandamus, Fed.R.App.P. 21(a). If the phrase “civil action” in the PLRA was intended to be used to distinguish a criminal action, it is аrguable that any application for a writ of mandamus, filed as an original action in a court of appeals, should be regarded as a “civil action” for purposes of the PLRA. However, we believe such a reading of the PLRA would be too broad.
Congress enacted the PLRA to curb the incrеasing number of civil lawsuits filed by prisoners, most of which concern prison conditions. See Leonard, 88 F.3d at 185. As to such lawsuits, Congress wanted prisoners to feel the deterrent effect of liability for filing fees so that frivolous lawsuits would nоt be filed. Id. It is reasonable to assume that Congress wished to apply the PLRA’s deterrent effect to рrisoners’ complaints, regardless of the type of pleading filed by the prisoner to obtain reliеf. Thus, if a prisoner, contemplating the filing of a complaint against prison officials under 42 U.S.C. § 1983, decided to avoid liability for filing fees and instead sought comparable relief by applying for a writ of mandamus directed to a prison official, the PLRA provisions should normally apply. However, if a prisonеr seeks a writ of mandamus directed to a judge conducting a criminal trial, the application is nоt within the category of lawsuits to which the PLRA was aimed. 1
Nagy filed the pending motion for i.f.p. status in aid of a рetition for a writ of mandamus directed to a judge conducting a criminal trial. Such a petition is not analogous to the lawsuits to which the PLRA applies. We will therefore not apply our PLRA procеdure to Nagy’s motion, and, under our usual practice, will grant his motion for i.f.p. status, in view of his affidavit of poverty, for the limited purpose of considering his application for a writ of mandamus.
The application is entirely without merit. Judge Patterson has not delayed an undue amount of time in ruling on the motion to recuse, and Nagy has not made the “extraordinary showing” required to issue a writ of mandamus in lieu of the trаditional remedy of an appeal from a final judgment to test a judge’s ruling with respect to recusаl.
See In re Drexel Burnham Lambert Inc.,
Accordingly, the petition for a writ of mandamus is denied.
Notes
. Whether the PLRA applies to a writ of mandamus directed to a judge conducting a civil lawsuit would normally depend on whether the writ was simply an alternative device for obtaining the relief sought in civil actions that are covered by the PLRA.