Cornelius Martin, II v. United States , 317 F. App'x 869 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-14053 ELEVENTH CIRCUIT
AUGUST 7, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 07-01782-CV-RLV-1
CORNELIUS MARTIN, II,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
MICHAEL ZENK,
X. SHUMAN,
HECTOR LOPEZ,
Individually,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 7, 2008)
Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Cornelius Martin, II, a pro se federal prisoner, appeals
the district court’s dismissal of his complaint, which raised claims under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., and Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics, 91 S.Ct. 1999 (1971).
The district court dismissed the complaint without prejudice because Martin’s
allegation of poverty was untrue, 28 U.S.C. § 1915(e)(2)(A). No reversible error
has been shown; we affirm.
Martin’s FTCA claim stemmed from an injury he received when he tripped
on a sidewalk at the Federal Prison Camp Atlanta, where he was housed. He also
alleged, under Bivens, that he received inadequate medical care for this injury in
violation of the Eighth Amendment. With his complaint, on 26 July 2007, Martin
submitted an affidavit of indigency, dated 22 May 2007, which indicated he
received $200 a month from friends and relatives; and as of the date of the
affidavit’s execution, he had $33.36 in his prison bank account. His prison trust
fund account statement -- run on 24 May 2007 although it was supposed to cover
the six-month period immediately preceding the filing of his complaint, 28 U.S.C.
§ 1915(a)(2) -- noted that he had received a total of $1,818 in deposits in the
previous six months and had a maximum balance of $358.61 in the preceding 30
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days. His average balance for the six-month period of the statement was $233.56
while the average monthly deposit was $303.
Martin had submitted the identical affidavit and prison trust fund account
statement in another civil action -- Martin v. Zenk, 1:06-CV-3065 (N.D. Ga. 2007)
-- filed in the same federal district and assigned to the same federal district court
judge. In Martin v. Zenk, the district court concluded that Martin was unentitled
to proceed in forma pauperis and dismissed Martin’s complaint without prejudice:
Although it is true that as of May 22, 2007, the plaintiff had only $33.36 in
his account, the prison records show that he had deposits of $1818.00 in the
preceding six months and had a maximum balance of $358.61 in the
preceding 30 days. The court finds that plaintiff had sufficient funds to
prosecute this action but chose to spend those funds on matters other than
this litigation.
This Court affirmed that dismissal stating that the dismissal without prejudice was
proper in the light of Martin’s failure to demonstrate poverty.
In the instant suit, Martin again sought leave to proceed without the
prepayment of fees or costs pursuant to 28 U.S.C. § 1915(a)(1) claiming that his
poverty rendered him unable to make the required payments. In support of his
request, Martin submitted the very same documents that he had submitted in
Martin v. Zenk and on which the district court had ruled -- a ruling we later
affirmed -- that the allegation of poverty was untrue. Again because the allegation
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of poverty was untrue, the district court denied Martin leave to proceed in forma
pauperis. Noting the compulsory language of section 1915(e)(2)(A) that a federal
court “shall dismiss” a proceeding in forma pauperis “at any time if the court
determines that the allegation of poverty is untrue,” the district court dismissed
Martin’s case without prejudice.1
Martin complains that the district court erred by not giving him the
opportunity to explain the depletion in his account; and in support of his argument,
Martin cites Collier v. Tatum, 722 F.2d 653 (11th Cir.1983). Collier was decided
under a previous version of the IFP statute -- then 28 U.S.C. § 1915(d) -- which
provided that the court “may dismiss the case if the allegation of poverty is
untrue.” See Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986) (noting that
“[u]nder the clear and unambiguous language of [former section 1915(d)],
dismissal is not mandatory, but discretionary.”). Under that version of the statute,
Collier said that where decreases in a prisoner’s trust account are considered to be
a basis for denial of indigent status, “the prisoner should be given some reasonable
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Although the district court’s dismissal was without prejudice, it may be that his FTCA claim was
time-barred on the date of dismissal. Martin filed his complaint in July 2007, and the limitations
period seems to have expired on his FTCA claim in August 2007, six months after the denial of his
last administrative appeal. 28 U.S.C. § 2401(b). But because Martin has advanced no argument that
the district court dismissal operated to prejudice his FTCA claim, we do not address the import of
prejudice, if any exists. Also we make no intimations about prejudice on Martin’s Bivens claim.
From his complaint, it is unclear when the statute of limitations began.
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opportunity, after appropriate notice, to explain and refute any finding to that
effect.” Id. at 656 (quoting Evans v. Croom, 650 F.2d 521, 527 (4th Cir. 1981)).
Assuming arguendo that Collier applies to the revised IFP statute despite
the use of the compulsory “shall dismiss” language over the now-discarded
permissive“may dismiss” language, we see no reversible error. Martin is not
unfamiliar with the rules applicable to in forma pauperis applications. And
Martin was on notice from his earlier submission of these documents that they
failed to support his allegations of poverty. Fully advised of the inadequacy of
this affidavit and prison trust statement to establish indigency, Martin relied on
these documents without adding explanation or otherwise seeking to refute the
district court’s earlier rejection of these materials in Martin v. Zenk. Whatever
process may be required to assure that a litigant has a full and fair opportunity to
be heard, no litigant is entitled to be heard on the same question over and over
again.
AFFIRMED.
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