Wilson v. Sargent

• Decision Date: 06 December 2002
• Docket Number: No. 01-14827. Non-Argument Calendar.,01-14827. Non-Argument Calendar.
• Citation: 313 F.3d 1315
• Parties: Charles D. WILSON, Sr., Plaintiff-Appellant, v. George SARGENT, Chief Counselor, Scott State Prison, Marrinne Reynolds, Counselor, Scott State Prison, Marla Blackmon, Parole Hearing Examiner, Georgia State Board of Pardons and Paroles, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

313 F.3d 1315

Charles D. WILSON, Sr., Plaintiff-Appellant, v. George SARGENT, Chief Counselor, Scott State Prison, Marrinne Reynolds, Counselor, Scott State Prison, Marla Blackmon, Parole Hearing Examiner, Georgia State Board of Pardons and Paroles, Defendants-Appellees.

No. 01-14827. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

December 6, 2002.

Charles D. Wilson, Sr., Nicholls, GA, pro se.

Appeal from the United States District Court for the Middle District of Georgia.

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Charles Wilson, a Georgia state prisoner, appeals pro se the dismissal of his § 1983 action for failure to pay an initial partial filing fee of $7.16 as ordered by the district court. We conclude that before dismissing the complaint, the court was required to ascertain whether Wilson had attempted to comply with the fee order by requesting or authorizing prison officials to withdraw the partial filing fee from his prison trust fund account. Because the court did not do so, but merely dismissed the case sua sponte, we vacate the dismissal and remand this case for that inquiry.

I. Factual Background

Wilson filed his complaint on May 31, 2001. Along with the complaint, Wilson filed a completed "Application to Proceed Without Prepayment of Fees," a form application provided by the Clerk's Office of the United States District Court for the Middle District of Georgia to all prisoners seeking in forma pauperis ("IFP") status. This Application includes a sworn statement by the prisoner listing all the prisoner's assets and income and averring, inter alia, that the prisoner "is unable to pay such fees or give security therefor." See 28 U.S.C. § 1915(a)(1). In addition, the Application includes a printed acknowledgment that fees and costs will be collected from the applicant's prison trust account in installments.¹ The IFP Application also includes a "Certification" section, to be completed at the prisoner's custodial institution, stating the average monthly balance of the prisoner's account for the past twelve months and listing any other securities the prisoner has at the institution. The Certification section requires that a statement of the prisoner's inmate account for the past twelve months be attached. See id. § 1915(a)(2).

Wilson completed and filed this Application, with the Certification section already completed by Wilson's custodial institution and his inmate trust fund account statement attached thereto. In his sworn Application, Wilson stated that his only source of money over the last twelve months was his family, which sent him "about fifty dollars a month." The Certification section completed by Wilson's custodial institution on May 10, 2001 indicates that Wilson's average account balance over the preceding twelve months had been $10.85 and that he had a $10.00 contingency. Wilson's attached inmate trust fund account statement, dated May 9, 2001, includes transactions up to April 16, 2001, and shows that Wilson had received six deposits in the six months leading up to the filing of his complaint, totaling $215.00, and that the account had an ending balance of 24 cents.

On May 31, 2001, the district court referred Wilson's Application to proceed IFP to a magistrate judge. On June 11, 2001, the magistrate judge entered an order granting Wilson's motion to proceed IFP and directing him to pay an initial partial filing fee of $7.16 within thirty days of receipt of the order. The magistrate judge's order explained that the fee assessment was "[b]ased upon the information provided by plaintiff and after consideration of the trust fund account statement from the facility wherein he is incarcerated." The order warned Wilson that failure to comply with this order would result in dismissal of his complaint.

Approximately six weeks later, on July 30, 2001, the district court sua sponte entered an order dismissing Wilson's complaint because he had not paid the initial partial filing fee as ordered by the court. On August 6, 2001, Wilson filed a motion for reconsideration, arguing that as an indigent inmate, he was entitled to "disregard filing fees" and to move forward. He further argued that § 1915(b)(4) prohibits the dismissal of his complaint if he cannot pay the initial partial filing fee and requires that the partial filing fee should be collected only "when funds exist." The district court summarily denied the motion for reconsideration. Wilson timely appealed.

II. Discussion

This appeal involves the Prisoner Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"), passed by Congress "[i]n an effort to stem the flood of prisoner lawsuits in federal court," Harris v. Garner, 216 F.3d 970, 972 (11th Cir.2000) (en banc). To further that effort, the PLRA amended portions of 28 U.S.C. § 1915 to require the payment of filing fees by prisoners proceeding in forma pauperis in the district court. Id. The four issues raised by Wilson relate to those amended provisions. First, we consider de novo the legal issue of whether the PLRA requires all inmates, even indigent ones, to pay filing fees. See Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir. 2002). Second, we review the district court's calculation of the initial partial filing fee for abuse of discretion. See Sellers v. United States, 881 F.2d 1061, 1063 (11th Cir.1989). Third, we consider de novo whether the PLRA requires payments of fees only when funds exist. See Troville, 303 F.3d at 1259. Finally, we review for abuse of discretion the district court's dismissal of Wilson's complaint for failure to comply with its IFP order. See Connolly v. Papachristid Shipping Ltd., 504 F.2d 917, 920 (5th Cir.1974)²; see also Wouters v. Martin County, 9 F.3d 924, 929 (11th Cir.1993), cert. denied, 513 U.S. 812, 115 S.Ct. 65, 130 L.Ed.2d 21 (1994).

A. Assessment of filing fees against indigent inmates

Before enactment of the PLRA in 1996, the decision whether or not to assess a filing fee against a prisoner proceeding IFP under § 1915 was left to the discretion of the district court. See Collier v. Tatum, 722 F.2d 653, 655 (11th Cir.1983). The PLRA, however, "clearly and unambiguously requires 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.'" Hubbard v. Haley, 262 F.3d 1194, 1197 (11th Cir.2001) (quoting 28 U.S.C. § 1915(b)(1)), cert. denied, 534 U.S. 1136, 122 S.Ct. 1083, 151 L.Ed.2d 983 (2002). Nevertheless, the PLRA provides 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." 28 U.S.C. § 1915(b)(4). Accordingly, the impecunious defendant, although liable for the entire fee, may pay his or her entire fee in installments. Id. § 1915(3)(b)(1); see McGore v. Wrigglesworth, 114 F.3d 601, 606 (6th Cir.1997) (observing that "the only issue [in IFP fee determination] is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan"); see also Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.1997). Thus, in the case before us the district court properly assessed Wilson an initial filing fee.

B. Assessment and calculation of initial filing fee

To enable the district court to assess an appropriate initial filing fee, § 1915 as amended by the PLRA requires that prisoners submit with their IFP application "an affidavit that includes a statement of all assets such prisoner possesses" and "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." Id. § 1915(a)(1), (2).³ After the prisoner files a completed IFP application, the district court "shall assess and, when funds exist, collect" an initial partial filing fee equivalent to "20 percent of the greater of... the average monthly deposits ... or the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint." Id. § 1915(b)(1)(A), (B).⁴ If the IFP Application and attachments show that the inmate's trust account contained no funds for the six-month period immediately preceding the filing of the complaint, the inmate is assessed an initial partial filing fee of $0.00 and ordered to pay the full filing fee in installments. See id. § 1915(b)(2); Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir.2000).

In the present case, Wilson swore in his IFP Application that his family sends him approximately $50 a month. This statement is borne out by his prison trust fund account statement showing that during the six months preceding filing the action he received $215.00 in deposits.⁵ Thus, the average monthly deposits to the account for that period equaled $35.83, an amount greater than the average monthly balance. Pursuant to § 1915(b)(1), the district court therefore was required to assess Wilson an initial fee equal to 20 percent of his $35.83 average monthly deposits, or $7.16. Thus, the court correctly calculated Wilson's initial partial filing fee to be $7.16.

C. Collection of initial filing fee and remainder

Once the district court assesses an initial partial filing fee, the inmate is liable for its payment. See § 1915(b)(1). If the prisoner's account does not contain the full amount assessed as an initial partial filing fee, the inmate must ensure that any available portion of that initial fee is withdrawn from his account and transmitted to the clerk of the district court. See Hatchet, 201 F.3d at 653. Once the entire initial partial filing fee is paid pursuant to § 1915(b)(1), the PLRA requires that the prisoner...