Harold Henderson v. Larry Norris ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
___________
No. 97-1813
___________
Harold Henderson, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Larry Norris, Director, Arkansas * Eastern District of Arkansas.
Department of Correction; David *
Guntharp, Assistant Director, * [Published]
Arkansas Department of Correction, *
*
Appellees. *
___________
Submitted: August 5, 1997
Filed: November 19,
1997
___________
Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
___________
PER CURIAM.
Arkansas prisoner Harold Henderson appeals from the
district court&s1 summary dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous. Henderson sued the
director and assistant director of the Arkansas
Department of Correction, alleging due process violations
in the defendants& (1) failure to timely and properly
process unspecified grievances and (2) failure to allow
Henderson to participate in establishing a grievance
policy. Upon preliminary review, the district court
dismissed the complaint without prejudice and certified
any appeal would not be in good faith. The district
court clerk and the clerk of this court notified
Henderson of the fee requirements under the Prison
Litigation Reform Act of 1995 (PLRA).2 Henderson
persisted in his appeal, arguing his notice of appeal was
timely but ignoring the fee requirements. We require
Henderson to pay appellate fees in accord with 28 U.S.C.
§ 1915, as amended by the PLRA, determine the procedure
to be used to assess, calculate, and collect the fees he
owes, and summarily affirm the district court.
I
We have stated that the PLRA “makes prisoners
responsible for their filing fees the moment the prisoner
. . . files an appeal.” In re Tyler, 110 F.3d 528, 529-
30 (8th Cir. 1997). The Sixth Circuit has held that
1
The Honorable George Howard, Jr., United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendation of the Honorable Jerry
W. Cavaneau, United States Magistrate Judge for the Eastern District of Arkansas.
2
Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996) (codified at 28
U.S.C.A. § 1915 (West Supp. 1997)).
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“[w]hen an inmate seeks pauper status, the only issue is
whether the inmate pays the entire fee at the initiation
of the proceeding or over a period of time under an
installment plan.” See McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997). Thus, prisoners who appeal
judgments in civil
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cases must sooner or later pay the appellate filing fees
in full.3 Newlin v. Helman, 123 F.3d 429, 432 (7th Cir.
1997). However, the provisions of § 1915(b)(4) permit a
prisoner to appeal if the prisoner has no assets and no
means to pay the initial partial appellate filing fee.
In such a case, the whole of the appellate filing fees
are to be collected and paid by the installment method
contained in § 1915(b)(2).
The McGore court reasoned that the introductory
clauses of subsections (a)(1) and (b)(1) of § 1915
excluded the good faith certification provision of
subsection (a)(3) from the prisoner appeal process. See
id. at 610-11. On the other hand, the Fifth Circuit in
Baugh v. Taylor, 117 F.3d 197, 199 (1997), reconciled the
coexistence of subsections (a)(1), (b)(1), and (a)(3) by
using Federal Rule of Appellate Procedure 24(a) and its
thirty-year history of implementation. Id. at 201;
accord Newlin, 123 F.3d at 432. Our own history of the
implementation of Federal Rule of Appellate Procedure
24(a), see Perry v. Ralston, 635 F.2d 740 (8th Cir.
1980), puts us more in line with the Baugh v. Taylor
court than with the McGore court. Consequently, we hold
that civil action prisoner-appellants who have been
denied the right to proceed on appeal in forma pauperis
by the district court because the district court has
certified under § 1915(a)(3) that the appeal would not be
taken in good faith, may still, by separate motion filed
with this court pursuant to Federal Rule of Appellate
3
A $5 filing fee is required by 28 U.S.C. § 1915 and a $100 docketing fee is
required by the Judicial Conference of the United States. We refer to the total $105 as
"appellate filing fees" in this opinion.
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Procedure 24(a), seek to proceed in this court under the
provisions of § 1915. We further hold that the filing of
such a motion with this court triggers the prisoner-
appellant's responsibility to pay the full amount of the
appellate filing fees pursuant to the installment payment
provisions of § 1915(b), see Baugh at 202, unless the
appellant must pay the full amount up front in cash
because he has acquired the requisite "three strikes"
under § 1915(g).
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In implementing the PLRA, we believe it useful to
distinguish the “assessment,” “calculation,” and
“collection” of appellate filing fees. As indicated
above, the assessment of appellate filing fees occurs
upon the filing of a notice of appeal or the filing of a
motion to proceed in forma pauperis with this court
pursuant to Federal Rule of Appellate Procedure 24(a),
and fixes responsibility for payment sooner or later of
the fees in full. The calculation of the initial partial
appellate filing fee occurs upon the availability of the
certification of a prisoner-appellant&s prison account and
leads to an order to prison officials to deduct the
initial partial appellate fee and installment payments
from a prisoner-appellant&s account. The collection of
the initial payment and the later installment payments
(the latter to be calculated and remitted by prison
officials pursuant to § 1915(b)(2)) occurs over whatever
time is needed for the payment of the assessed fees. The
calculation and collection steps do not delay the court&s
resolution of the merits of the appeal. Once appellate
filing fees are assessed, the court may proceed as
appropriate to consider the particular case, for example,
to dismiss the appeal as frivolous or malicious under
§ 1915(e)(2)(B)(i), to summarily dispose of the appeal in
accord with the pleadings and district court record, or
to order briefing, argument, and full submission.
Irrespective of the court's approach to the merits of the
appeal, the prisoner's liability for the full payment of
the appellate filing fees under the PLRA continues until
full payment has been made which may be long after we
have disposed of the appeal.
With regard to this case, and to implement the
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congressional intent of requiring prisoner-appellants to
pay appellate filing fees in full, we establish the
following procedures:
(1) When the district court notifies the prisoner
litigant in a civil action of its judgment, the court
shall notify the prisoner that: (a) the filing of a
notice of appeal by the prisoner makes the prisoner liable
for payment of the full $105 appellate filing fees
regardless of the outcome of the appeal; (b) by filing a
notice of appeal the prisoner consents to the deduction of
the initial partial appellate filing fee and the remaining
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installments from the prisoner's prison account by prison
officials; (c) the prisoner must submit to the clerk of
the district court a certified copy of the prisoner's
prison account for the last six months within 30 days of
filing the notice of appeal; and (d) failure to file the
prison account information will result in the assessment
of an initial appellate partial fee of $35 or such other
amount that is reasonable, based on whatever information
the court has about the prisoner's finances.
(2) When a district court receives a prisoner's
notice of appeal in a prisoner's civil action, it shall
assess the $105 appellate filing fees and process the
appeal in ordinary course.
(3) When the district court receives the certified
copy of the prisoner's prison account, it shall:
(a) calculate the initial appellate partial filing fee as
provided by § 1915(b)(1), or determine that the provisions
of § 1915(b)(4) apply. In such event the whole of the
appellate filing fees shall be paid pursuant to the
installment payment provisions of § 1915(b)(2);
(b) notify the prison officials to pay the initial
appellate partial fee from the prisoner's account to the
clerk of the district court and to calculate and pay the
remaining installments to the clerk of the district court
until the whole of the appellate filing fees has been paid
in full as provided by § 1915(b)(2); and (c) send a copy
of the collection order to the prisoner.
(4) If the district court does not receive a
certified copy of the prisoner's prison account within 30
days of the notice of appeal, it shall calculate the
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initial appellate partial filing fee at $35 or such other
reasonable amount warranted by available information and
proceed as in paragraph 3, above.
(5) Upon a prisoner's showing of good cause for delay
in providing a certified copy of the prison account, the
district court may extend the time for providing the copy.
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District courts should continue to certify pursuant
to § 1915(a)(3) and Federal Rule of Appellate Procedure
24(a) whether or not an appeal by any appellant who has
moved in the district court to proceed in forma pauperis
on appeal is or is not taken in good faith. If the
district court concludes that such an appeal is not taken
in good faith, it shall, pursuant to Federal Rule of
Appellate Procedure 24(a), "state in writing the reasons
for the denial." Such a denial remains reviewable under
the appellate motion practice provided for in Federal Rule
of Appellate Procedure 24(a), but, as we have indicated,
the filing of such a motion by a prisoner-appellant
results in the immediate assessment of the full appellate
filing fees under § 1915(b).
In this case — processed before our establishment of
procedures — we assess Henderson&s appellate filing fees
at $105 and notify him that he has 30 days to submit to
the district court a certified copy of his prison account
for the six months immediately before the filing of his
appeal. We leave it to the district court to calculate
Henderson's initial partial appellate filing fee and to
order collection of that fee and the remaining
installments from him in accord with § 1915 and the
procedures outlined above.
II
We now consider Henderson&s appeal. We agree with
Henderson that his notice of appeal was timely under
Federal Rule of Appellate Procedure 4(c) (notice is filed
when deposited in institution&s internal mail system).
Upon our review of the district court record, however, we
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affirm the judgment of the district court under Eighth
Circuit Rule 47A(a), conclude that Henderson&s appeal is
frivolous,4 and notify him that the dispositions of both
his complaint and his appeal are “strikes” under
§ 1915(g). Newlin, 123 F.3d at 433.
4
We are mindful that the affirmance of a district court&s dismissal of a complaint
as frivolous does not automatically make the appeal frivolous.
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MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and dissenting.
I concur in so much of the court's opinion as holds that a prisoner in a civil action
may file a motion to proceed under § 1915 despite the fact that the district court has
certified that the appeal is not taken in good faith, and that the filing of such a motion
triggers the prisoner's duty to pay the filing fees, subject to certain exceptions. With
respect, however, I cannot locate in any statute or common-law principle the authority
that the court evidently asserts to promulgate rules for the district courts in cases like
the present one, or, indeed, in any other kind of case. The court engages not in
adjudication, but in rule-making, and rule-making, moreover, of a kind for which the
court does not even purport to find a warrant. I therefore respectfully dissent from the
portion of the court's judgment that derives from the part of its opinion regulating the
district court's handling of cases under the PLRA.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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