Crawford v. Frimel , 197 F. App'x 144 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-26-2006
Crawford v. Frimel
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2415
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO: 05-2415
CARL DWAYNE CRAWFORD,
Appellant
v.
EDWARD M. FRIMEL; VITO D. ROSELLI;
KEITH R. HOLDSWORTH; MICHAEL CARBONELL;
KEVIN MCSHANE; JAMES R. MELINSON
_______________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 05-cv-00118)
District Judge: Honorable Mary A. McLaughlin
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 5, 2006
Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES
(Filed July 26, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Carl Crawford appeals from a District Court order denying his request to
proceed in forma pauperis (“IFP”) in his civil rights action brought under Bivens v. Six
Unknown Named Agents on the Federal Bureau of Narcotics, 403 U.S. 388 (1971). For
the reasons that follow, we will vacate the District Court’s order and remand the matter
for further proceedings.
I. Facts and Procedural History
On January 11, 2005, Crawford filed a Bivens action against five FBI agents and
United States Magistrate Judge James R. Melinson alleging that the Defendants conspired
to issue a warrant and search his home without probable cause. He seeks release from
custody, the expungement of his record, and monetary damages. He also filed a
completed application to proceed IFP with the necessary attachments.
Two days later, the District Court issued a memorandum implicitly finding that
Crawford is eligible to proceed IFP and that $20.76 would be deducted from Crawford’s
prison account. Crawford v. Frimel, No. 05-cv-00118, Mem. and Order (E.D. Pa. Jan. 14,
2005). However, the District Court denied the motion because Crawford “may not have
known when he brought this action that he must pay the filing fee, and that even if the full
filing fee, or any part of it, has been paid, the Court must dismiss the case if it finds that
the action” falls within 28 U.S.C. § 1915(e)(2). The District Court then issued the
following order:
1. The petition is DENIED WITHOUT PREJUDICE to its reassertion in
accordance with the terms of this order;
2. If plaintiff files with the Court within twenty (20) days from the date of this
order a notice that he wishes to proceed with this action and thereby
obligate himself to pay the $150 filing fee, this action will be reinstated; and
3. The Clerk of Court shall CLOSE this case statistically.
Id. The Court sent Crawford notice of the order, but the order was returned by the
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Postal Service as undeliverable. On April 19th, Crawford gave notice of a change of
address. The District Court immediately forwarded a copy of the January 14, 2005 order
to Crawford’s new address. Crawford quickly responded with a document titled “Petition
to Appeal To Proceed in forma pauperis,” which the District Court entered on April 29,
2005. The District Court treated the document as a notice of appeal (NOA) from the
order entered on January 14, 2005. We granted Crawford’s request to proceed IFP on
appeal, but sent him a letter explaining that the appeal might be dismissed for lack of
jurisdiction because the order is not final or appealable. See Borelli v. City of Reading,
532 F.2d 950, 951-52 (3d Cir. 1976).
On July 27, 2005, we entered the following order:
It appears that Appellant’s notice of appeal was filed more than sixty days after the
District Court’s order entered January 14, 2005 became final at the expiration of
the twenty-day period in which Appellant had to respond. See Fed. R. App. P.
4(a)(1)(A); Penn West Assoc., Inc. v. Cohen, 371 F.3d 118, 128 n.9 (3d Cir. 2004)
(explaining that a dismissal without prejudice becomes final at the conclusion of
the designated period). We remand to the District Court for the purposes of
determining whether Appellant satisfies the requirements of either Federal Rule of
Appellate Procedure 4(a)(5) or 4(a)(6). The Clerk shall transmit to the District
Court Appellant’s document entitled “Petition To Appeal To Proceed in forma
pauperis” which the District Court may wish to construe as either a motion for
extension of time to file an appeal under Federal Rule of Appellate Procedure
4(a)(5) or a motion to reopen the time to file an appeal under Federal Rule of
Appellate Procedure 4(a)(6). In the meantime, we retain jurisdiction and postpone
ruling on whether to dismiss for lack of jurisdiction.
On remand, the District Court held that Crawford fulfilled the requirements of Rule
4(a)(5) and granted his motion to appeal out of time. We then entered a briefing
schedule. Crawford timely filed his pro se brief and filed a motion for the appointment of
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counsel on appeal as well as a motion to supplement the pleadings and add additional
defendants. The Appellees filed a motion to dismiss the appeal for lack of appellate
jurisdiction or as untimely and also filed their appellate brief. Crawford submitted a
reply. The matter is now ripe for review.
II. Jurisdiction and Timeliness of the Appeal
We have jurisdiction to review final orders of the District Court. 28 U.S.C. §
1291. The denial of a motion to proceed IFP is a final and appealable order. See Abdul-
Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). The parties do not dispute that the
District Court’s order dismissing the case without prejudice became final at the expiration
of the twenty-day window. See Penn West Assoc., Inc. v. Cohen, 371 F.3d 118, 128 n.9
(3d Cir. 2004). Nor do the parties challenge on appeal the propriety of the District
Court’s order granting an extension of time to file an appeal. However, the Appellees
still seek to dismiss the appeal arguing that the notice of appeal was untimely filed.1
Once the District Court construed Crawford’s “Petition to Appeal” to include a
request for an extension of time under Rule 4(a)(5), and granted the motion, the notice of
appeal filed on April 29, 2005 became timely filed. The Appellees have not filed a cross-
appeal challenging the District Court’s order granting Crawford an extension of time to
1
We have yet to decide whether the time to file a notice of appeal is jurisdictional
or a “claim-processing” rule subject to waiver. See Eberhart v. United States, __U.S.__,
126 S. Ct. 403 (2005). However, we need not address that issue here because the
timeliness of the notice of appeal is not at issue in this case.
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file an appeal under 4(a)(5), thereby waiving the issue on review. See Helvering v.
Pfeiffer, 302 U.S. 247, 250-51 (1937) (“[A]n appellee cannot without a cross-appeal
attack a judgment entered below.”). Thus, we accept that Appellant’s April 29, 2005
petition, which was construed as a notice of appeal, is timely, and turn to whether the
District Court abused its discretion in denying Crawford’s motion to proceed IFP.
III. IFP
We review a District Court order denying a motion to proceed IFP for abuse of
discretion. See Abdul-Akbar v. Watson, 901 F.2d 329, 331 (3d Cir. 1990). Title 28
U.S.C. § 1915(a) sets forth the conditions that a petitioner must satisfy in order to receive
IFP status. See also Roman v. Jeffes, 904 F.2d 192, 194 n.1 (1990). Section 1915(a)
provides:
(1) Subject to subsection (b), any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding,
civil or criminal, or appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement of
all assets such prisoner possesses that the person is unable to pay such fees
or give security therefor. Such affidavit shall state the nature of the action,
defense or appeal and affiant’s belief that the person is entitled to redress.
(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil
action or proceeding without prepayment of fees or security therefor, in
addition to filing the affidavit filed under paragraph (1), shall submit a
certified copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period immediately preceding
the filing of the complaint or notice of appeal, obtained from the
appropriate official of each prison at which the prisoner is or was confined.
In Sinwell v. Shapp, we explained that it would be improper for a District Court to
deny a motion for IFP and dismiss a case on “the inappropriate factor of venue rather than
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on economic status.” 536 F.2d 15, 18-19 (3d Cir. 1976). Although § 1915 was amended
to permit a court to dismiss a case as frivolous, Sinwell implies that without express
authorization to consider other factors, IFP should be granted or denied based on those
requirements set forth in the rule. See also Roman, 904 F.2d at 194 n.1 (explaining that
IFP determinations consist of a two-step inquiry–financial eligibility and § 1915(e)).
As the D.C. Circuit explained in In re Green, 669 F.2d 779 (D.C. Cir. 1981),
“[a]part from the necessity of a case-by-case determination of poverty, frivolity or
maliciousness, a court may impose conditions upon a litigant–even onerous conditions–so
long as they assist the court in making such determinations” and do not deny the litigant
his constitutional right to access the courts. Id. at 786.
Here District Court did not deny Crawford’s IFP status on an assessment of
financial eligibility or under § 1915(e). Rather, it acknowledged that Crawford qualifies
for IFP, but denied the application because Crawford failed to timely respond indicating
his desire to proceed on the complaint. The District Court’s order was not imposed with
the purpose of assisting the Court in making a financial eligibility determination. Rather,
its intent was to give Crawford additional warning that he would still be charged even if
the District Court dismissed the case as frivolous. Although we applaud the District
Court’s desire to assist a pro se litigant, imposing upon Crawford an additional burden
detached from establishing financial eligibility was an abuse of discretion.
Accordingly, we will vacate the District Court’s order and remand the case for
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further proceedings. Appellant’s motion for the appointment counsel on appeal is denied.
Appellees’ motion to dismiss is denied.2
2
The Appellees filed a motion to dismiss, repeating the argument in their brief.
The Appellees’ motion is meritless, ignores and omits key facts, and incorrectly applies
obvious rules of date tabulation. The Appellees, through counsel, argue that Crawford’s
notice of appeal is untimely because he fails to satisfy Federal Rule of Appellate
Procedure 4(a)(6). Inexplicably, the Appellees completely ignore this Court’s remand
order and the District Court’s order granting a Rule 4(a)(5) extension. Indeed, they even
fail to mention Rule 4(a)(5) at all in either their motion to dismiss or their appellate brief.
It is as if the Appellees overlooked the past year of litigation in this case.
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