Boling-Bey v. U.S. Parole Com'n

• Citation: 559 F.3d 1149
• Decision Date: 18 March 2009
• Docket Number: No. 08-3166.,08-3166.
• Parties: Oliver BOLING-BEY, Plaintiff-Appellant, v. U.S. PAROLE COMMISSION; Pamela A. Posch, Attorney, in her individual and official capacity; Jeffery Koastbar, Examiner, in his individual and official capacity; Samuel Robertson, Examiner, in his individual and official capacity; Federal Bureau of Prisons; Albert Wilson, Case Manager, in his individual and official capacity; Mike Gray, Case Manager, in his individual and official capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

559 F.3d 1149

Oliver BOLING-BEY, Plaintiff-Appellant, v. U.S. PAROLE COMMISSION; Pamela A. Posch, Attorney, in her individual and official capacity; Jeffery Koastbar, Examiner, in his individual and official capacity; Samuel Robertson, Examiner, in his individual and official capacity; Federal Bureau of Prisons; Albert Wilson, Case Manager, in his individual and official capacity; Mike Gray, Case Manager, in his individual and official capacity, Defendants-Appellees.

No. 08-3166.

United States Court of Appeals, Tenth Circuit.

March 18, 2009.

Oliver Boling-Bey, Estill, SC, pro se.

Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for Defendants-Appellees.

Before KELLY, PORFILIO, and O'BRIEN, Circuit Judges.

SECOND ORDER REQUIRING COMPLETION OF IN FORMA PAUPERIS APPLICATION

The matter before the court is the "Reply Motion to the Court's Inquiry of Completion of In Forma Pauperis Application" (Response) filed by pro se appellant Oliver Boling-Bey, a federal prisoner. The Response addresses our Order Requiring Completion of In Forma Pauperis Application, filed December 9, 2008 (First Order). In that Order, we directed Boling-Bey to submit a certified copy of his inmate trust fund account statement in support of his Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees (ifp Motion), as required by statute:

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 under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) 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.

28 U.S.C. § 1915(a)(2). Boling-Bey did not supply a certified copy of his trust fund account statement with his response. Instead he argued that he need not obtain authorization to proceed ifp on appeal because he was permitted to proceed ifp in the district court and it did not certify that this appeal was not taken in good faith or find he was not otherwise entitled to proceed ifp on appeal. Affording his pro se Response and other papers liberal construction, see Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 6 (10th Cir.1991), we reject this argument as well as his other excuses for not complying with the First Order.

I. Appellate IFP requirements

Section 1915(a)(2) stems from § 804(a)(1)(F) of the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321, 1321-73 (Apr. 26, 1996) (PLRA). It applies to "prisoner[s] seeking to bring a civil action or appeal a judgment in a civil action or proceeding." 28 U.S.C. § 1915(a)(2). Boling-Bey's appeal falls within this provision because he was a prisoner at the time he filed his complaint and he remains so, the complaint initiated a civil action, and this appeal is from the district court's judgment in that civil action.¹

In support of his chief justification for not submitting a certified copy of his trust fund account statement, Boling-Bey relies on Rule 24(a)(3) of the Federal Rules of Appellate Procedure, which provides:

Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:

(A) the district court—before or after the notice of appeal is filed—certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or

(B) a statute provides otherwise.

Boling-Bey is factually correct—the district court did not issue either of the prohibitory rulings regarding the appeal set out in Rule 24(a)(3)(A), perhaps because he did not file a motion to proceed ifp on appeal with the district court. But his argument overlooks the second exception to the continuing-authorization provision of Rule 24(a)(3)—a party may not proceed ifp on appeal without further authorization if "a statute provides otherwise." Fed. R.App. P. 24(a)(3)(B).

The text of § 1915(a)(2) and interpreting case law reveals that, with respect to prisoners falling within its ambit, the PLRA superseded what is now Rule 24(a)(3)(A)² by establishing a two-tiered approach to ifp determinations. The statute applies to "[a] prisoner seeking to bring a civil action[³] or appeal a judgment in a civil action or proceeding[,]" and it requires the submission of "a certified copy of the trust fund account statement (or the institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal[.]" 28 U.S.C. § 1915(a)(2) (emphases and footnote added). The import of the emphasized disjunctive phrasing is obvious: There must be independent determinations of indigence at each step where prepayment of a filing fee is required— when the prisoner files a complaint and again when the prisoner files a notice of appeal. The requirement of a current (within six months) and certified copy of the inmate's trust fund account statement punctuates the need for a two-tiered approach. A case often will not be concluded in six months and the prisoner's financial circumstances may have changed. Indeed, PLRA's "fee provisions are intended to reduce frivolous prisoner litigation by making all prisoners seeking to bring lawsuits or appeals feel the deterrent effect created by liability for filing fees. The PLRA is designed to require the prisoner to bear some marginal cost for each legal activity." Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir.2003) (quotations and citations omitted) (emphases added).

Upon taking effect in 1996, § 1915(a)(2) was at odds with the pre-PLRA version of Rule 24(a)(3)—under the old rule, prisoners who had proceeded ifp in the district court and wished to appeal a judgment in a civil action or proceeding were not required to obtain further authorization, whereas under the statute, they were. We resolve this conflict by applying the principle of interpretation that a later-enacted statute trumps an earlier-enacted rule of civil or appellate procedure with which it conflicts. See Autoskill Inc. v. Nat'l Educ. Support Sys., Inc., 994 F.2d 1476, 1485 (10th Cir.1993) (explaining that 28 U.S.C. § 2072,⁴ a provision of the Rules Enabling Act, ordinarily abrogates conflicting statutes enacted before a procedural rule, but that a subsequently-enacted statute prevails over a procedural rule). Thus, upon its effective date, § 1915(a)(2) superseded pre-PLRA Rule 24(a)(3) to the extent the rule permitted prisoners who had been granted ifp status in the district court to proceed ifp on appeal from a judgment in a civil action or proceeding without further authorization. A number of circuits have expressly reached this conclusion. See Jackson v. Stinnett, 102 F.3d 132, 134, 136 (5th Cir.1996) (explaining that the PLRA's modification of § 1915(a) repealed Rule 24(a) to the extent there was a conflict between them); see also Mitchell v. Farcass, 112 F.3d 1483, 1489 (11th Cir.1997) (adopting Jackson); Morgan v. Haro, 112 F.3d 788, 789 (5th Cir.1997) (relying on Jackson for the proposition that under the PLRA, "[a] prisoner who seeks to proceed IFP on appeal must obtain leave to [do] so despite proceeding IFP in the district court"); In re Prison Litigation Reform Act, 105 F.3d 1131, 1136 (6th Cir.1997) (administrative order) (adopting Jackson).⁵ And as the advisory committee's notes to the 2002 amendment to Rule 24 make clear, subparagraph (a)(3)(B) was added specifically in response to judicial rulings such as Morgan that the requirements § 1915(a) imposed on prisoners conflicted with Rule 24(a)(3):

Rule 24(a)(3) has also been amended to eliminate an apparent conflict with the PLRA. Rule 24(a)(3) has provided that a party who was permitted to proceed in forma pauperis in the district court may continue to proceed in forma pauperis in the court of appeals without further authorization, subject to certain conditions. The PLRA, by contrast, provides that a prisoner who was permitted to proceed in forma pauperis in the district court and who wishes to continue to proceed in forma pauperis on appeal may not do so "automatically," but must seek permission. See, e.g., Morgan v. Haro, 112 F.3d 788, 789 (5th Cir.1997) ("A prisoner who seeks to proceed IFP on appeal must obtain leave to so proceed despite proceeding IFP in the district court.").

Rule 24(a)(3) has been amended to resolve this conflict. Again, recognizing that future legislation regarding prisoner litigation is likely, the Committee has not attempted to incorporate into Rule 24 all of the requirements of the current version of 28 U.S.C. § 1915. Rather, the Committee has amended Rule 24(a)(3) to clarify that the rule is not meant to conflict with anything required by the PLRA or any other statute.

Fed. R.App. P. 24 advisory committee's notes (2002).

Based on the foregoing principles, we hold that a prisoner seeking to proceed ifp on appeal from a judgment in a civil action or proceeding must file a new motion in the district court together with a supporting affidavit and a certified copy of the prisoner's trust fund account statement for the six-month period immediately prior to the filing of the notice of appeal. It must be done regardless of the prisoner's ifp status in the district court. See 28 U.S.C. § 1915(a); Fed. R.App. P. 24(a)(1) (requiring motion in the district court unless Rule 24(a)(3) applies); 10th Cir. R. 24.1 (requiring the district court to "obtain sufficient information to determine [a] prisoner's eligibility for, and make the assessment of, a partial [appellate] filing fee under the [PLRA]" when "a prisoner...