Leonard v. Lacy, Docket No. 96-2393

• Citation: 88 F.3d 181
• Decision Date: 10 July 1996
• Docket Number: Docket No. 96-2393
• Parties: Leslie Thomas LEONARD, Plaintiff-Appellant, v. Peter J. LACY, Superintendent, Bare Hill Facility, and Myaddow, Correctional Officer, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 181

88 F.3d 181

65 USLW 2124

Leslie Thomas LEONARD, Plaintiff-Appellant, v. Peter J. LACY, Superintendent, Bare Hill Facility, and Myaddow, Correctional Officer, Defendants-Appellees.

Docket No. 96-2393.

United States Court of Appeals Second Circuit.

Submitted July 3, 1996.

Decided July 10, 1996.

Leslie Thomas Leonard, pro se, Malone, N.Y.

Before: NEWMAN, Chief Judge, KEARSE and WINTER, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This motion by a state prisoner for leave to appeal in forma pauperis obliges this Court to consider the application of the fee requirements of the Prison Litigation Reform Act of 1995 ("PLRA"). We conclude that an appellate court must take steps to assure compliance with the fee requirements of the PLRA before making any assessment of whether an appeal should be dismissed as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We also conclude that a procedure must be established to assure the prompt and efficient compliance with the PLRA. We outline in this opinion the procedure this Court will use when prisoners seek to appeal from a judgment in a civil action without prepayment of fees. Since Leonard has not had an opportunity to submit the authorization we now require, we will dismiss the appeal in 30 days unless within that time he files such authorization.

Facts

Leslie Thomas Leonard, a prisoner incarcerated in a New York corrections facility, filed a complaint under 42 U.S.C. § 1983 against the superintendent of the facility and a corrections officer. He alleged verbal harassment, which he claimed violated his First Amendment rights. Leonard accompanied his complaint with a motion to proceed in forma pauperis ("i.f.p.") pursuant to 28 U.S.C. § 1915(a). The District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge) denied the motion for i.f.p. status and dismissed the complaint as frivolous. From the judgment entered April 29, 1996, Leonard filed a notice of appeal on May 2, 1996. Leonard thereafter filed in this Court the pending motion to proceed in forma pauperis.

Discussion

Prior to the enactment of the PLRA, this Court responded to applications for leave to appeal in forma pauperis under subsection 1915(a) by making a threshold assessment of the merits of the appeal in order to determine whether the appeal surmounted the standard of frivolousness set forth in former subsection 1915(d) (renumbered subsection 1915(e) by the PLRA). Upon a determination that an appeal was frivolous within the meaning of former subsection 1915(d), see Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), we dismissed the appeal. Generally, we denied the motion for i.f.p. status when we dismissed the appeal. On occasion, we first granted the motion for i.f.p. status upon determining that the appellant's lack of financial resources qualified him for i.f.p. status, then made the threshold assessment of the merits, and, upon concluding that the appeal was frivolous, dismissed it. See, e.g., Hidalgo-Disla v. INS, 52 F.3d 444 (2d Cir.1995).

On April 26, 1996, the President signed the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996), Title VIII of which is the Prison Litigation Reform Act of 1995. Section 804 of the PLRA makes a series of amendments to 28 U.S.C. § 1915, the provision of the Judicial Code governing in forma pauperis status. Since the new language affects not only Leonard's pending motion but also numerous other motions now pending in this Court or likely to be filed, we set forth in full those provisions of section 1915 that the PLRA amends, lining out those words deleted from the prior version and italicizing new matter:

§ 1915. Proceedings in forma pauperis

[ADDED: (a)(1) Subject to subsection (b), any] court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees [DELETED: and costs] or security therefor, by a person who [DELETED: makes affidavit] [ADDED: submits an affidavit that includes a statement of all assets such prisoner [sic ] possesses] [and] that [DELETED: he] [ADDED: the person] is unable to pay [DELETED: such costs] [ADDED: such fees] or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that [DELETED: he] [ADDED: the person] is entitled to redress.

[ADDED: (2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit 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.]

[DELETED: An appeal] [ADDED: (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].

[ADDED: (b)(1) 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. 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--

(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

(3) In no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of a civil action or an appeal of a civil action or criminal judgment.

(4) In 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.

(c) Upon the filing of an affidavit in accordance with][DELETED: subsection (a) of this section] [ADDED: subsections (a) and (b) and the prepayment of any partial filing fee as may be required under subsection (b)] .... [balance of former subsection (b) is unchanged].

[ADDED: (d) .... [balance of former subsection (c) is unchanged].

[DELETED: (d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.]

[ADDED: (e)(1) The court may request an attorney to represent any person unable to afford counsel.]

[ADDED: (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that]-- [ADDED: (A) the allegation of poverty is untrue; or]

[ADDED: (B) the action or appeal]

[ADDED: (i) is frivolous or malicious;]

[ADDED: (ii) fails to state a claim on which relief may be granted; or]

[ADDED: (iii) seeks monetary relief against a defendant who is immune from such relief.]

Before the PLRA, section 1915 required all litigants seeking to proceed in a trial court or on appeal without prepayment of fees to file an affidavit of poverty. The PLRA amends section 1915 by imposing additional requirements on prisoners seeking to avoid prepayment of fees in civil actions and in appeals in civil actions. The prisoner must pay the full amount of filing fees by subjecting the prisoner's "trust fund account ... (or institutional equivalent)," 28 U.S.C. § 1915(a)(2) (hereinafter "prison account"), to periodic partial payments. The initial payment is 20 percent of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, id. § 1915(b)(1), unless the prisoner has no assets, id. § 1915(b)(4). Subsequent payments are 20 percent of the preceding month's income, ¹ in any month in which the account exceeds $10, until the filing fees are paid. Id. § 1915(b)(2).

The PLRA's amendments to section 1915 raise several issues that apply to Leonard's pending motion. Preliminarily, we note that there is no issue as to the applicability of the PLRA to his motion since both his notice of appeal and his motion to proceed in forma pauperis were filed after the April 26, 1996, effective date of the Act.

I. At What Point Does the Prisoner Become Liable for Filing Fees?

A basic issue arising under the PLRA is whether a prisoner filing an appeal becomes liable for appellate filing fees before or after his motion for leave to appeal in forma pauperis has been adjudicated. The language of subsection 1915(b)(1) could be read to mean that fee liability attaches only after i.f.p. status has been granted. The requirement of payment of the full amount of a filing fee is imposed "if a prisoner brings a civil action or files an appeal in forma pauperis." 28 U.S.C. § 1915(b)(1) (emphasis added). This wording is slightly different from subsection 1915(a)(2), which imposes the requirement of filing an affidavit of poverty and a certified copy of the trust fund account for the prior six months upon "[a] prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor." Id. § 1915(a)(2). Subsection 1915(a)(2)...