Smith, In re

• Decision Date: 13 June 1997
• Docket Number: No. 96-5327,96-5327
• Citation: 114 F.3d 1247
• Parties: In re Peter C. SMITH, Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1247

114 F.3d 1247

325 U.S.App.D.C. 39

In re Peter C. SMITH, Petitioner.

No. 96-5327.

United States Court of Appeals, District of Columbia Circuit.

Argued April 15, 1997.

Decided June 13, 1997.

Petition for a Writ of Prohibition.

Evelina J. Norwinski, Assistant Federal Public Defender, Washington, DC, appointed by the court as amicus curiae, argued the cause on the side of petitioner, with whom A.J. Kramer, Federal Public Defender, was on the brief. Peter C. Smith, appearing pro se, also filed briefs.

William D. Weinreb, Assistant U.S. Attorney, Washington, DC, argued the cause for respondent, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys, were on the brief.

Before RANDOLPH and ROGERS, Circuit Judges and BUCKLEY, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In 1996, Congress passed the Prison Litigation Reform Act ("PLRA") as Title VIII of the Omnibus Consolidated Recessions and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996). ¹ On November 21, 1996, shortly before his release from prison, petitioner Peter C. Smith lodged with this court a pleading styled as a petition for a writ of prohibition, naming as respondent the United States Department of Justice, but also seeking relief from the United States Parole Commission. In his petition Smith contends that the Commission's files erroneously fail to reflect that the Commission ceased to have authority over him on November 1, 1992; the Commission's calculation of his parole date violated § 235(b) of the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.1987, 2032 (1984)(codified as amended at 18 U.S.C. § 3551 (1985 & Supp.1996)); the Federal Bureau of Prisons ignored its rules in calculating the length of his sentence; the search of his residence violated his Fourth Amendment rights; and his trial attorney was constitutionally ineffective. Citing the Privacy Act of 1974, 5 U.S.C. § 552a (1996), Smith seeks an order directing the Commission to correct his parole files, as well as an order awarding him compensatory and punitive damages. The petition was duly filed by the Clerk of the Court. Smith also filed a motion to proceed in forma pauperis.

The court sua sponte deferred ruling on Smith's motion for leave to proceed in forma pauperis and appointed the Federal Public Defender as amicus curiae to present arguments in Smith's favor. The court ordered the parties to address three issues: first, whether the filing fee provisions of the PLRA apply to habeas corpus proceedings; second, the impact, if any, of Smith's release from prison on the applicability of the PLRA's filing fee requirements; and third, whether the petition is moot as a result of Smith's release from prison. We hold that the PLRA is applicable to Smith's petition, that his release from prison does not relieve him of past due obligations under the PLRA, and that although his request for habeas corpus relief is moot as a result of his release from prison, his claims for correction of Commission records, a declaration that as of November 1, 1992, he was no longer subject to Commission supervision, and for damages are not moot. Therefore, because Smith's petition may not properly be filed until his PLRA obligations are met, we defer any decision regarding his petition and motion until he complies with the PLRA filing fee requirements. See Martin v. United States, 96 F.3d 853, 856 (7th Cir.1996). We will only address the first two issues because the answer to the third is too obvious to warrant discussion.

I.

Until 1996, the in forma pauperis statute, 28 U.S.C. § 1915(a), provided that any person without means could commence "any suit, action, or proceeding, civil or criminal," without prepaying the requisite filing fees. In enacting the PLRA in 1996, Congress "endeavor[ed] to reduce frivolous prisoner litigation by making all prisoners seeking to bring lawsuits or appeals feel the deterrent effect created by liability for filing fees." Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir.1996); see also Naddi v. Hill, 106 F.3d 275, 277 (9th Cir.1997); United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.1996); Martin v. United States, 96 F.3d 853, 856 (7th Cir.1996). Thus, "Congress enacted the PLRA primarily to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal Torts Claims Act, most of which concern prison conditions and many of which are routinely dismissed as legally frivolous." Santana v. United States, 98 F.3d 752, 755 (3d Cir.1996) (citing legislative history); see also Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.1996).

Section 804 of the PLRA amends the in forma pauperis statute to provide that "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." 28 U.S.C. § 1915(b)(1). ² Section 804 also establishes a prepayment scheme, including an initial payment of a portion of the funds available in a prisoner's account and subsequent installments based on fixed percentages of the amount in the prisoner's account when the full fee is not initially paid. Id. § 1915(b)(2). ³ Section 1915(b)(4) provides, however, that "[i]n 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." Thus, subject to § 1915(b)(4), prepayment of the filing fee is required in every case in which a prisoner proceeding in forma pauperis brings a "civil action."

Although Congress did not define the term "civil action" for purposes of the PLRA, we conclude that it includes a petition for a writ of prohibition that, like Smith's, includes underlying claims that are civil in nature. While Smith and amicus contend that Smith's petition should be treated identically to a habeas corpus petition, we find no basis to conclude that because certain claims in his petition arise out of criminal proceedings he may evade the PLRA requirements applicable to his civil claims. The circuits addressing the applicability of the PLRA filing fee requirements to habeas corpus petitions have uniformly concluded that Congress did not intend the prepayment obligations to apply to habeas corpus filings. Two days after enacting the PLRA, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1997), which imposed comprehensive measures for deterring frivolous habeas petitions. As the Seventh Circuit explained in Martin:

since the simultaneously enacted antiterrorism act deals comprehensively with habeas corpus, since habeas corpus is more accurately regarded as being sui generis ... than as being either civil or criminal, and since postconviction relief and prisoner civil rights relief are analytically very different and the [PLRA] is addressed to the latter, we agree ... that the Act is inapplicable to habeas corpus.

96 F.3d at 855. Every other circuit that has addressed the question whether the PLRA applies to petitions for habeas corpus has concluded that it does not, essentially for the same reasons articulated in Martin. See Naddi, 106 F.3d at 277; Cole, 101 F.3d at 1077; Santana, 98 F.3d at 754; Reyes, 90 F.3d at 678.

By contrast, three circuits have held that petitions for mandamus or prohibition that are predicated on underlying civil claims fall within the range of actions that Congress sought to subject to the PLRA filing fee requirements. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir.1996); Martin, 96 F.3d at 854-55; Green v. Nottingham, 90 F.3d 415, 418 (10th Cir.1996); In re Nagy, 89 F.3d 115, 116 (2d Cir.1996). The rationale of these decisions is that it would defeat the purpose of the PLRA if a prisoner could evade its requirements simply by dressing up an ordinary civil action as a petition for mandamus or prohibition or by joining it with a petition for habeas corpus. See Green, 90 F.3d at 418. We agree. Therefore, we hold that because Smith's petition includes compensatory and punitive damage claims under the Privacy Act, 5 U.S.C. § 552a, that are civil in nature, and was filed after the effective date of the PLRA while he was still in prison, the fee requirements of the PLRA apply. ⁴ See Reyes, 90 F.3d at 678 II.

The question remains how the PLRA's procedures for the the payment of filing fees apply in the case of a prisoner who is released before the filing and docket fees have been fully paid.

Accompanying his petition for leave to proceed in forma pauperis was an affidavit in which Smith stated that he had no income or assets, earned $6.00 per month in prison wages, had received "[g]ifts in varying amounts of under $100.00," and had less than $1.00 in savings as of May 15, 1996. ⁵ That Smith currently lacks the means to pay the applicable filing fee does not, however, relieve him of his obligation to comply with past due procedural and payment obligations under the PLRA. If a litigant is a prisoner on the day he files a civil action, the PLRA applies. See Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir.1997); McGann v. Commissioner, Social Sec. Admin., 96 F.3d 28, 29-30 (2d Cir.1996). Although Smith's obligation to pay the filing fee arose at the time he sought to file his petition with this court, 28 U.S.C. § 1915(a)(1), (b); see McGann, 96 F.3d at 29-30, the record does not indicate that he submitted the prison account statements required by § 1915(a)(2), ⁶ paid the initial partial filing fee required by § 1915(b)(1), or made any of the monthly payments required by § 1915(b)(2). Under the PLRA, failure to comply with any of these requirements may result in dismissal of a prisoner's action. See Ayo v. Bathey, 106 F.3d 98, 101 (5th Cir.1997).

Smith and amicus contend that because the PLRA applies exclusively to prisoners, although Smith failed to...