117 F.3d 197 (5th Cir. 1997), 96-40908, Baugh v. Taylor

Docket Nº:96-40908.
Citation:117 F.3d 197
Party Name:Robert L. BAUGH, Plaintiff-Appellant, v. Joe Max TAYLOR; Eric Nevelow; Perry Evans, Defendants-Appellees.
Case Date:June 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 197

117 F.3d 197 (5th Cir. 1997)

Robert L. BAUGH, Plaintiff-Appellant,


Joe Max TAYLOR; Eric Nevelow; Perry Evans, Defendants-Appellees.

No. 96-40908.

United States Court of Appeals, Fifth Circuit

June 30, 1997

Page 198

Robert L. Baugh, Woodville, TX, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and DOHERTY, [*] District Judge.

POLITZ, Chief Judge:

Robert Baugh, a Texas prisoner, appeals the dismissal of his 42 U.S.C. § 1983 claims for various alleged unconstitutional conditions of confinement. His appeal, like so many recent prisoner cases, raises an issue of first impression under the Prison Litigation Reform Act (PLRA). For the reasons assigned we remand to the district court in order that it may supplement its prior certification that the appeal was not taken in good faith, or recall and revise same, or otherwise proceed herein as it deems appropriate.


Baugh and several other Texas state prisoners were inmates in the Galveston County Jail when they sued local jail officials for alleged unconstitutional failure to protect them from attacks by fellow inmates; deliberate indifference to serious medical needs; unanswered grievances; and other alleged unconstitutional conditions of confinement. The district court granted Baugh leave to proceed in forma pauperis (IFP). 1

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Thereafter, the district court referred the case to a magistrate judge who directed Baugh to respond to interrogatories designed to elicit detailed information about his claims. After receiving Baugh's answers, the magistrate judge recommended dismissal of his claims as frivolous. The district court agreed and dismissed Baugh's case with prejudice. Baugh filed a timely notice of appeal and a motion for leave to proceed on appeal IFP. The district court denied the motion to proceed IFP and certified that the appeal was not taken in good faith, citing Fed.R.App.P. 24(a). No reasons beyond those contained in the dismissal ruling were given.

In response to Baugh's motion to proceed IFP in this court we ordered that his appeal be held in abeyance either pending payment of the filing fee or the filing of an affidavit to proceed IFP that complied with the PLRA. Baugh has complied with that order. We must now determine whether he is entitled to proceed IFP on appeal, and more specifically, the proper application of Fed.R.App.P. 24(a) herein in light of the PLRA.


Baugh maintains that under Rule 24 the district court was required to give written reasons for certifying that his appeal was not taken in good faith. Two recent decisions, Jackson v. Stinnett 2 and Strickland v. Rankin County Correctional Facility, 3 have held that 28 U.S.C. § 1915, which the PLRA extensively amended, repeals portions of Rule 24.

Our colleagues in the Sixth Circuit addressed the specific question now before us in Floyd v. United States Postal Service. 4 Chief Judge Martin's collation of PLRA developments explicates that decision, 5 as does his more recent opinion in McGore v. Wrigglesworth. 6

A close read of Floyd reflects that it reaches two conclusions: (1) conditional phrases in section 1915(a) and (b) create a prisoner/nonprisoner dichotomy between the various parts of subsection (a); and (2) subsection (a)(3), which it concludes applies only to nonprisoners, poses an absolute bar to IFP appeals and hence impliedly repeals part of Rule 24(a). We cannot accept either conclusion.

A. A Prisoner/Nonprisoner Dichotomy in 28 U.S.C. § 1915(a)

The linchpin of the first of the foregoing conclusions is that the phrases "Notwithstanding subsection (a)" and "Subject to subsection (b)" found in section 1915 make subsections (a)(3) and (b)(1) mutually exclusive. We are not so persuaded for several reasons.

First, section 1915(a)(1) provides that "any court ... may authorize the commencement, prosecution or defense of any suit, ... or appeal therein, without the prepayment of fees or security therefor." We hold that the phrase "Subject to subsection (b)" that precedes this authorization was meant merely to clarify that prisoners initiating a civil suit or appeal 7 are required to pay the "full amount of a filing fee." 8 Reciprocally, subsection (b)(1)'s phrase, "Notwithstanding subsection (a)," forecloses the possibility that prisoners could seize upon subsection (a)(1)'s language authorizing the commencement of suits and appeals "without the prepayment of fees." These two phrases do nothing more.

Second, we find no mandated conflict between (a)(3) and (b)(1). Subsection (a)(3) states that an appeal may not be taken IFP if the district court certifies in writing that the appeal is not taken in good faith. That a prisoner in such a setting is required to pay the full filing fee, regardless of his IFP status, does not mean that (a)(3)'s sanction has no application to prisoner litigation. Once

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the district court certifies that an IFP appeal is not taken in good faith, prisoners, like nonprisoners, cannot appeal 9 unless prepared to pay the full filing fee, deposits, and other costs. The assessment procedures in the reconstituted section 1915(b) are not applicable to all prisoner litigation, only IFP prisoner litigation. 10 A prisoner litigant who has been denied IFP status for appeal, or whose appeal has been certified as taken in bad faith, must pay the full filing fee and other costs when due, without the benefit of the accommodating assessment procedures found in section 1915(b).

Finally, we cannot accept our sister circuit colleague's analysis on the interplay between subsections (a) and (b) of section 1915, convinced that such frustrates the goals of the PLRA, namely the curbing of frivolous prisoner litigation and the preservation of our limited appellate resources. Under the Floyd model, district courts may end a nonprisoner IFP appeal in the traditional manner, by certifying that the appeal is not taken in good faith, but may no longer do the same for prisoner appeals. We conclude otherwise and hold that the district courts retain the discretion to certify under section 1915(a)(3) that IFP appeals, from prisoners and nonprisoners alike, are not taken in good faith.

B. Whether § 1915(a)(3) Repeals Rule 24(a)

Finally, we must determine whether section 1915(a)(3) implicitly repealed portions of Rule 24(a). Nothing in the PLRA expressly repeals Rule 24 and the legislative history is silent; we therefore are constrained to proceed cautiously, noting that "[r]epeals by implication are not favored." 11 Every effort to harmonize the competing statutes must be made.

Two of our recent decisions have held that section 1915 impliedly repealed portions of Rule 24. Neither case, however, controls the issue before us today. In Jackson v. Stinnett, an IFP prisoner's section 1983 suit, filed before the effective date of the PLRA, was dismissed as frivolous after its effective date. The trial court did not certify that the appeal was taken in bad faith, so the prisoner, following the letter of Rule 24, did not reapply with the court of appeals for permission to proceed IFP. Under Rule 24(a), the prisoner, who had been permitted to proceed IFP at trial, was allowed to "proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor," 12 the "carryover" provision. The Jackson court, noting that the appeal was filed after the effective date of the PLRA, held that the PLRA overruled Rule 24 to the extent that it allowed the prisoner to rely on a pre-PLRA certification of IFP status. Rule 24's carryover provision could not apply because the pre-PLRA IFP requirements did not meet the heightened PLRA standards. Jackson also held that the PLRA expressly required the payment of filing fees by prisoner IFP appellants, 13 and thus that Rule 24's exemption for the payment of such fees no longer applied.

In Strickland v. Rankin County Correctional Facility, decided a month later, a prisoner's IFP appeal was pending before the effective date of the PLRA. Like the prisoner in Jackson, Strickland arguably had carryover IFP status under Rule 24. Expanding on Jackson, the Strickland court held that IFP appeals docketed before the effective date of the PLRA were subject to the PLRA's heightened IFP standards, as well as the mandatory filing fees of section 1915(b). 14 Strickland was therefore required to reapply for IFP status and pay the appellate

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filing fees and could not rely on Rule 24. 15

Unlike the Jackson and Strickland cases, the instant appeal does not involve provisions of section 1915 that conflict with Rule 24. The perceived conflict noted in Floyd is that section 1915(a)(3) does not permit an appeal to proceed IFP if the appeal is not taken in good faith, whereas Rule 24(a) allows an IFP appellant to apply to the courts of appeals for IFP status within 30 days of such a certification. Although we agree with the Floyd court that these provisions appear to be in conflict, a close examination of the historical context of section 1915(a)(3) persuades otherwise.

More than half a century before the PLRA, 28 U.S.C. § 1915(a) stated, as it does today, that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." Relevant provisions in Rule 24(a) were adopted in 1967 to spell out the procedural implementation of 28 U.S.C. § 1915. The PLRA merely moved this provision from subsection (a) of section 1915 to subsection (a)(3). We do not view this relocation as evidence of congressional intent to abrogate procedures in Rule 24 that have coexisted peacefully for three decades with the identical...

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