McGore v. Wrigglesworth

• Decision Date: 11 June 1997
• Docket Number: No. 97-1165,97-1165
• Citation: 114 F.3d 601
• Parties: Darryl McGORE, Plaintiff-Appellant, v. Gene L. WRIGGLESWORTH, Chief Sheriff; Richard Chinelli, Administrator; Ingham County Sheriff's Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 601

114 F.3d 601

Darryl McGORE, Plaintiff-Appellant, v. Gene L. WRIGGLESWORTH, Chief Sheriff; Richard Chinelli Administrator; Ingham County Sheriff's Department, Defendants-Appellees.

No. 97-1165.

United States Court of Appeals Sixth Circuit.

Decided June 11, 1997.

Darryl McGore (briefed), East Lake, MI, for Plaintiff-Appellant.

Before: MARTIN, Chief Judge; NORRIS and DAUGHTREY, Circuit Judges.

OPINION

BOYCE F. MARTIN, Jr., Chief Judge.

"In a case where the construction of legislative language such as this makes so sweeping and so relatively unorthodox a change as that made here, I think judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night." Harrison v. PPG Indus., Inc., 446 U.S. 578, 602, 100 S.Ct. 1889, 1902, 64 L.Ed.2d 525 (1980) (Rehnquist, J., dissenting); see also United States v. Gonzales, 520 U.S. 1, ---- n. 2, 117 S.Ct. 1032, 1039 n. 2, 137 L.Ed.2d 132 (1997) (Stevens, J., dissenting). When Congress penned the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, §§ 801-10, 110 Stat. 1321 (Prison Litigation Act), the watchdog must have been dead. The statute contains typographical errors, see Floyd v. United States Postal Serv., 105 F.3d 274, 276 (6th Cir.1997); creates conflicts with the Rules of Appellate Procedure, id. at 277; and is internally inconsistent, compare 28 U.S.C. § 1915(f)(2)(B), with 28 U.S.C. § 1915(a)(2), and 28 U.S.C. § 1915(b)(2). Moreover, the year in its name, 1995, does not correspond to the date of its enactment, 1996. We have even issued an unprecedented administrative order, see In re Prison Litigation Reform Act, 105 F.3d 1131 (6th Cir.1997), in an attempt to organize the chaos. Now, over a year after the statute was signed into law, we are provided the opportunity to engage in a comprehensive analysis of the statute.

I. FACTS

Darryl McGore, a Michigan prisoner, sued the Ingham County Michigan Sheriff's Department, its Chief, Gene Wrigglesworth, and Richard Chinelli, a staff administrator, in their individual and official capacities pursuant to 42 U.S.C. § 1983. McGore alleged that he sued the Director of the Michigan Department of Corrections in the Ingham County Circuit Court. At an unspecified date, McGore requested that the sheriff's department serve the summons. According to McGore, on May 25, 1996, he received a $14.60 invoice from the sheriff. Chinelli reportedly informed McGore that the sheriff was not obligated to serve the summons. It appears that McGore did not pay the requested $14.60. McGore filed this civil rights action seeking monetary and injunctive relief.

The district court summarily dismissed the action under 28 U.S.C. § 1915(e)(2), 28 U.S.C. § 1915A(b), and 42 U.S.C. § 1997e(c). The district court also certified that any appeal would not be taken in good faith under 28 U.S.C. § 1915(a)(3) and that the case satisfied the provisions of 28 U.S.C. § 1915(g).

McGore filed a timely appeal seeking leave to proceed in forma pauperis before this court. We held McGore's pauper motion in abeyance pending briefing by the parties. The appellees have informed the court that they will not be filing a brief. McGore argues that the failure of the sheriff's department to serve the summons deprived him of access to the courts, that the defendants violated his due process rights, and that his complaint was subjected to standards too stringent for a pro se complaint.

II. STANDARD OF REVIEW

We must first determine our standard of review when a district court dismisses a complaint under § 1915(e)(2) or § 1915A(b). Prior to its amendment, 28 U.S.C. § 1915(d) provided that a court might dismiss a case if the court was satisfied that the action was frivolous or malicious. In Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733-34, 118 L.Ed.2d 340 (1992), the Supreme Court found that the language of the statute indicated that frivolity was a decision entrusted to the discretion of the court entertaining the pauper petition. Therefore, Supreme Court concluded that a dismissal under § 1915(d) was reviewed under the abuse of discretion standard. Id. at 33-34, 112 S.Ct. at 1733-34.

In contrast, § 1915(e)(2) and § 1915A(b) do not contain discretionary language. Section 1915(e)(2) requires that a court "shall dismiss" a case if: the allegation of poverty is untrue; the case is frivolous or malicious; the case fails to state a claim on which relief may be granted; or a party seeks monetary relief against a defendant who is immune from such relief. Section 1915A(b) is essentially identical to § 1915(e)(2) except that § 1915A applies only to prisoners and does not contain the provision concerning the allegation of poverty. As this court must now ascertain whether the district court properly dismissed the complaint in compliance with § 1915(e)(2) and § 1915A, we conclude that our determination involves a question of law which requires de novo review. See United States v. Khalife, 106 F.3d 1300, 1302 (6th Cir.1997).

We further note that a district court's dismissal of a complaint for failure to state a claim upon which relief may be granted, under either § 1915(e)(2) or § 1915A(b), is still subject to our traditional de novo standard. See Fraser v. Lintas: Campbell-Ewald, 56 F.3d 722, 724 (6th Cir.), cert. denied, 516 U.S. 975, 116 S.Ct. 477, 133 L.Ed.2d 405 (1995).

III. ANALYSIS OF PRISON LITIGATION ACT

By enacting the Prison Litigation Act, Congress has changed the procedure by which courts must analyze requests for pauper status. Courts no longer focus first on the merits of a prisoner's complaint. Rather, it is the prisoner's financial status that the courts must initially examine. Pauper status for inmates, as we previously knew it, no longer exists. While incarcerated, all prisoners must now pay the required filing fees and costs. 28 U.S.C. §§ 1915(b)(1)-(2), 1915(f)(2). When 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. Prisoners are no longer entitled to a waiver of fees and costs. See In re Tyler, 110 F.3d 528, 529-30 (8th Cir.1997).

A. Prisoner Who Pays Filing Fee

When a prisoner files a complaint in the district court, the inmate must either pay the entire filing fee, or request leave to proceed in forma pauperis "without prepayment of fees or security therefor" under 28 U.S.C. § 1915(a)(1). If the inmate tenders the full filing fee, before service of process is made on the opposing parties, the district court must screen the case under the criteria of § 1915(e)(2) and § 1915A. The screening process must be in compliance with Section III(D) of this decision.

B. Prisoner Pauper Documents

If the inmate files a complaint and seeks pauper status, the prisoner must file either Form 4 from the Appendix of Forms found in the Federal Rules of Appellate Procedure, or an affidavit which contains the identical information requested in Form 4. Although Form 4 does not satisfy the exact requirements of the statute, proposed amendments necessary to bring Form 4 into compliance with the Act are awaiting final approval at the time of this opinion. For administrative expediency, the present Form 4 will suffice for pauper requests until the new form is finalized. In addition to the affidavit, the prisoner must file a certified copy of a prison trust account statement showing the activity in the inmate's prison account for the previous six months. 28 U.S.C. § 1915(a)(2). As the Prison Litigation Act makes prisoners responsible for their filing fees the moment the civil action or appeal is filed, see In re Tyler, 110 F.3d at 529-30, we conclude that by filing the complaint or notice of appeal, the prisoner waives any objection to the fee assessment by the district court. Furthermore, the prisoner waives any objection to the withdrawal of funds from the trust account by prison officials to pay the prisoner's court fees and costs. A prisoner has a duty to cooperate during the litigation. See Ballard v. Burrage, 97 F.3d 382, 383 (10th Cir.1996) (order). Payment of litigation expenses is part of the prisoner's responsibility. Once the complaint, affidavit of indigency, and trust account statement have been filed, the district court must issue the fee assessment as required under Section III(C) and conduct the screening procedure set forth in Section III(D).

1. Failure To File Required Forms

If an inmate, not paying the full filing fee, fails to provide an affidavit of indigency or trust account statement, the district court must notify the prisoner of the deficiency and the prisoner will then have thirty days from the date of the deficiency order to correct the error or pay the full filing fee. If the prisoner does not comply with the district court's directions, the district court must presume that the prisoner is not a pauper and assess the inmate the full amount of fees. The district court must then order the case dismissed for want of prosecution. If the case is dismissed under these circumstances, it is not to be reinstated to the district court's active docket despite the subsequent payment of filing fees.

2. Extensions Of Time

A prisoner may seek leave to extend the thirty-day time period to correct any filing deficiency regarding pauper status. The district court may, in its discretion, grant such an extension for up to thirty days, as long as the inmate files the extension motion within thirty days after the district court files the order of deficiency. To be viable, an extension motion must be filed within thirty days of the deficiency order, unless the prisoner makes an affirmative showing that he or she did not receive the deficiency order within the thirty days. If such a showing is made in a notarized statement or a declaration complying with 28 U.S.C. § 1746 and setting forth the date the inmate received the deficiency order, the district court may, in its...