104 F.3d 895 (7th Cir. 1997), 96-1053, Robbins v. Switzer

Docket Nº:96-1053, 96-1142, 96-2212, 96-2213 and 96-2855.
Citation:104 F.3d 895
Party Name:Martin D. ROBBINS, Plaintiff-Appellant, v. Clarence SWITZER, et al., Defendants-Appellees. Martin D. ROBBINS, Plaintiff-Appellant, v. Michael R. CLOUD, et al., Defendants-Appellees. Martin D. ROBBINS, Plaintiff-Appellant, v. ORANGE COUNTY COURT, et al., Defendants-Appellees. Martin D. ROBBINS, Plaintiff-Appellant, v. G.L. HOLMES, et al., Defendants
Case Date:January 07, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 895

104 F.3d 895 (7th Cir. 1997)

Martin D. ROBBINS, Plaintiff-Appellant,

v.

Clarence SWITZER, et al., Defendants-Appellees.

Martin D. ROBBINS, Plaintiff-Appellant,

v.

Michael R. CLOUD, et al., Defendants-Appellees.

Martin D. ROBBINS, Plaintiff-Appellant,

v.

ORANGE COUNTY COURT, et al., Defendants-Appellees.

Martin D. ROBBINS, Plaintiff-Appellant,

v.

G.L. HOLMES, et al., Defendants-Appellees.

Martin D. ROBBINS, Plaintiff-Appellant,

v.

C.R. HALL, et al., Defendants-Appellees.

Nos. 96-1053, 96-1142, 96-2212, 96-2213 and 96-2855.

United States Court of Appeals, Seventh Circuit.

January 7, 1997

Submitted Dec. 6, 1996.

Page 896

Martin D. Robbins, Bedford, IN (submitted on brief), pro se.

Pamela Carter, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.

Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

While in state prison, Martin Robbins filed several lawsuits under 42 U.S.C. § 1983. Some were dismissed because the pleadings were inscrutable, and Robbins did not respond to judicial orders calling for clarity. Other complaints were clear enough to reveal that the suits are barred by judicial or prosecutorial immunity, or the principle of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), or fail to state claims on which relief may be granted. Robbins appealed five of his defeats. We must decide how the Prison Litigation Reform Act, Title VIII of Pub.L. 104-134, 110 Stat. 1321 (effective April 26, 1996) ("the Act"), applies to cases in which a person who is imprisoned at the time of the appeals is released before the full filing and docket fees have been paid.

Under 28 U.S.C. § 1915(a)(2), as amended by the Act,

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.

A prisoner who begins a civil action or files an appeal is not entitled to proceed without prepayment, a privilege § 1915(a)(1) extends to non-prisoners. Under § 1915(b):

Page 897

(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of

(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

One other provision of the Act, 28 U.S.C. § 1915(b)(4), is potentially relevant:

In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.

Robbins was imprisoned when he filed all five appeals. Four of the suits, and two of the appeals, were filed before April 26, 1996. In none of the five suits has Robbins paid a dime toward the filing fees or tendered a prison trust account statement.

In each of the two appeals filed before April 26, the district court has certified that an appeal would be frivolous. We held in Thurman v. Gramley, 97 F.3d 185, 188-89 (7th Cir.1996), that an order permitting the appeal to go forward as non-frivolous is equivalent to "filing" the appeal for purposes of the Act, and that the obligation to pay the $105 filing and docket fees for appeals commenced before April 26 does not attach until the certification. Thurman builds on the principle, articulated in Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996), that obligations under the Act depend entirely on the filing date of the appeal. Because Robbins is now out of prison, and neither appeal was filed for statutory purposes before his release, the Act does not apply at all to his first two appeals. This conclusion enables Robbins to avoid prepaying $210 in fees, but it does not advance his claims. Both of the appeals are frivolous, as the district courts concluded. We...

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