123 F.3d 429 (7th Cir. 1997), 96-4229, Newlin v. Helman

Docket Nº:96-4229, 97-1627 and 97-2145.
Citation:123 F.3d 429
Party Name:David NEWLIN, Petitioner-Appellant, v. David W. HELMAN, Respondent-Appellee. Jesse E. ROBINSON, Plaintiff-Appellant, v. B. SMITH, et al., Defendants-Appellees. James C. GRIFFIN, Plaintiff-Appellant, v. William R. HARRIS, et al., Defendants-Appellees.
Case Date:July 23, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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123 F.3d 429 (7th Cir. 1997)

David NEWLIN, Petitioner-Appellant,


David W. HELMAN, Respondent-Appellee.

Jesse E. ROBINSON, Plaintiff-Appellant,


B. SMITH, et al., Defendants-Appellees.

James C. GRIFFIN, Plaintiff-Appellant,


William R. HARRIS, et al., Defendants-Appellees.

Nos. 96-4229, 97-1627 and 97-2145.

United States Court of Appeals, Seventh Circuit

July 23, 1997

Submitted July 3, 1997.

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[Copyrighted Material Omitted]

Page 431

David Newlin (submitted), Pekin, IL, Plaintiff-Appellant Pro Se.

Jesse E. Robinson (submitted), Pendleton, IN, Plaintiff-Appellant Pro Se.

James C. Griffin (submitted), Westville, IN, Plaintiff-Appellant Pro Se.

K. Tate Chambers, Office of the United States Attorney, Peoria, IL, for Defendant-Appellee in No. 96-4229.

Susan S. Sher, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendants-Appellees in No. 97-2145.

Before POSNER, Chief Judge and EASTERBROOK and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Our court has issued a series of opinions--principally Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996), Martin v. United States, 96 F.3d 853 (7th Cir.1996), Thurman v. Gramley, 97 F.3d 185 (7th Cir.1996), and Robbins v. Switzer, 104 F.3d 895 (7th Cir.1997)--that resolve many issues presented by changes the Prison Litigation Reform Act made to 28 U.S.C. § 1915, which governs litigation in forma pauperis. A formidable number of questions remains, given the complex sequence of gatekeeper tasks created by the law. This opinion takes up a few of these questions, presented by three cases that we have consolidated for disposition. The common denominator is that in none of the three did the district court assess or collect a filing fee under the PLRA.

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James Griffin filed suit under 42 U.S.C. § 1983 against persons involved in a criminal prosecution against him in Indiana. The criminal charges were dismissed on December 23, 1994, so suit is proper under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Griffin was convicted on other charges, however, and will be a prisoner of Indiana for a long time to come. Heck establishes that the period of limitations began on the date the charges were dismissed. Id. at 489-90, 114 S.Ct. at 2373-74. Section 1983 suits in Indiana must commence within two years after the claim accrues. Perez v. Sifel, 57 F.3d 503, 505 (7th Cir.1995). Griffin filed his complaint in February 1997--too late, the district judge held. She dismissed the suit. When Griffin filed a notice of appeal and asked for leave to proceed in forma pauperis, the district court held that he is not eligible for that status because the appeal is not in good faith. See § 1915(a)(3): "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."

Our first question is whether such a finding is proper when the plaintiff is a prisoner. One circuit has held that it is not, observing that § 1915(b)(1) now begins: "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." According to McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir.1997), and Floyd v. United States Postal Service, 105 F.3d 274, 277-79 (6th Cir.1997), this notwithstanding clause makes all of subsection (a) inapplicable to prisoners, who therefore may appeal in forma pauperis even if the appeal is in bad faith. We join the fifth circuit, see Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997), in disapproving this conclusion. The sentence does not say that all of subsection (a) is inapplicable to prisoners. It addresses a particular element of subsection (a), concerning the collection of the filing fee, and provides that prisoners (unlike other plaintiffs) always must pay in full, although other parts of subsection (b) permit much of the payment to be deferred. Baugh offers additional support for this conclusion, which we adopt without the need for repetition.

We may review the district court's certification on motion filed within 30 days. Fed. R.App. P. 24(a) p 3. (Like Baugh, we hold that this portion of Rule 24 is compatible with the PLRA.) Must this review await assessment and collection of a partial filing fee under the second sentence of § 1915(b)(1)?: "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 [an amount determined by formula]." We said in Martin, 96 F.3d at 856, that a fee must be assessed and paid before the court of appeals determines whether the appeal will be dismissed as frivolous under § 1915(e)(2)(B)(i), explaining:

Congress wanted to relieve the pressures on the federal courts of frivolous suits by prison inmates and we can best achieve that purpose by insisting on payment in advance in every case in which that is feasible. To be content with trying to collect the fee after dismissing the suit as frivolous would be an inferior alternative, since by that time the prisoner will often not be able to pay even if he had the means to pay when he filed the appeal.

Does this carry over to findings under § 1915(a)(3)? The reasoning surely does, but the statutory language and structure are different. Dismissal under § 1915(e)(2) occurs after the appellant has been allowed to pursue an appeal; action under § 1915(a)(3) occurs at the outset.

The partial-prepayment mechanism under § 1915(b) applies only when a prisoner has been allowed to proceed in forma pauperis. The district judge uses the screening mechanism of § 1915(a)(3) to determine whether an inmate may so proceed; otherwise full payment is essential. A prisoner is bound to owe at least the initial partial payment, whether or not the court of appeals agrees with the district court's application of § 1915(a)(3), so one could ask: Why not insist on payment of that sum? Sensible though that may be, the language of the statute does not bear a reading requiring a prisoner who at the moment is not allowed to

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proceed in forma pauperis to satisfy a requirement laid on one who has that status. A would-be appellant may ask us to review a decision under § 1915(a)(3) without first satisfying the PLRA's partial prepayment requirement; at the time he asks, the whole PLRA-IFP structure has been ruled to be inapplicable. So like the fifth circuit in Baugh we hold that review by a Rule 24(a) motion may precede assessment and collection. But the concomitant understanding must be that if the plaintiff files a notice of appeal in addition to a Rule 24(a) motion (as Griffin has done), indicating an unconditional desire to appeal whether or not the fee will be deferred, the appellant irrevocably incurs an obligation to pay the fee. If we sustain the district court's decision, then the $105 filing and docket fees are due immediately; if we reverse the district court's decision, then the PLRA applies, and the fee must be assessed and paid (at least in part) under the PLRA regimen before any further judicial consideration occurs. Congress likely did not appreciate that application of § 1915(a)(3) may make it harder to collect the filing fees, but that's the way the statute reads.

Well, is this appeal in bad faith? That Griffin wants $20 million in damages from defendants who have absolute or qualified immunity, and is undaunted by knowledge that the suit is untimely, suggests that the answer is "yes." Relying on Williams v. Leach, 938 F.2d 769 (7th Cir.1991), and Lucien v. Roegner, 682 F.2d 625 (7th Cir.1982), the district judge held that appeal would be frivolous, and therefore could not proceed in forma pauperis. The judge appears not to have noticed that these cases deal with a portion of § 1915 that was altered by the PLRA. Under the former § 1915(d), a district judge could knock out an appeal by certifying that it was frivolous. Under the amended statute, the district court's only role with respect to appeals is determining whether the appeal was taken in "good faith." Frivolousness is an objective inquiry; "good faith" implies a subjective standard. But judges lack access to the plaintiff's mental processes. Thoughts must be inferred from acts. A plaintiff who has been told that the claim is foreclosed and then files a notice of appeal without offering any argument to undermine the district court's conclusion is acting in bad faith. Griffin has not given either the district judge or us any reason to doubt the conclusion that it was filed too late. So the appeal is indeed in bad faith. District judges should take care, however, to distinguish the criteria of § 1915(e)(2), which they may apply when evaluating requests to proceed in forma pauperis in their own courts, from the criterion of § 1915(a)(3), which applies once the plaintiff seeks to appeal.

The district court dismissed Griffin's suit for failure to state a claim on which relief may be granted. That makes the disposition a "strike" under § 1915(g). The appeal is frivolous, which also satisfies § 1915(g). Does Griffin now have one strike, because these are sequential proceedings in a single case, or two strikes, because complaints and appeals are evaluated separately? Two strikes, we think. Section 1915(g) reads:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

Under this language, bringing an action and...

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