McGann v. Commissioner, Social Sec. Admin.

• Decision Date: 09 September 1996
• Docket Number: Docket No. 96-6071
• Parties: Clarence Duke McGANN, Plaintiff-Appellant, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 28

96 F.3d 28

Clarence Duke McGANN, Plaintiff-Appellant, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

Docket No. 96-6071.

United States Court of Appeals, Second Circuit.

Submitted July 10, 1996.

Decided Sept. 9, 1996.

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

JON O. NEWMAN, Chief Judge:

This motion for leave to appeal in forma pauperis ("i.f.p.") and assignment of counsel presents the issue of whether a prisoner who files an appeal while incarcerated and is later released while the appeal is pending must pay filing fees pursuant to the Prisoner Litigation Reform Act of 1995 ("PLRA"). Clarence Duke McGann appeals from a judgment of the District Court for the Eastern District of New York (Sterling Johnson, Judge) dismissing his suit against the Commissioner of Social Security. We conclude that the PLRA fee requirements are not applicable to a released prisoner. Nevertheless, since the appeal is frivolous, we deny the motion for leave to appeal i.f.p., dismiss the appeal, and deny as moot the motion for appointment of counsel.

Background

1. McGann's lawsuit. McGann's complaint, filed while he was a New York state prisoner, challenged the policy of the Social Security Administration denying certain benefits to prisoners. The District Court granted McGann leave to proceed i.f.p., but simultaneously dismissed the complaint as frivolous. The Court ruled that mandamus was unavailable because any claim for benefits could be pursued with the Social Security Administration, and that the Court lacked jurisdiction to grant relief because administrative remedies had not been exhausted. McGann filed a motion for rehearing, which was denied. He then filed a notice of appeal from the order denying rehearing.

2. PLRA procedure. After McGann filed his notice of appeal, he filed a motion in this Court for assignment of counsel. On April 26, 1996, while that motion was pending, 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 imposes filing fee requirements on prisoners. See Leonard v. Lacy, 88 F.3d 181 (2d Cir.1996). Thereafter, this Court established a procedure for implementing the PLRA fee requirements, see id. at 187, and also ruled that the PLRA and the Leonard procedure applied to appeals pending when the PLRA became effective, see Covino v. Reopel, 89 F.3d 105 (2d Cir.1996), at least those to which no substantial judicial resources had yet been devoted.

Since McGann's complaint had been dismissed by the District Court as frivolous, the Clerk's Office of this Court, following its usual practice, considered his i.f.p. status to have been revoked, see 28 U.S.C. § 1915(e) (as amended), and required appellant either to pay required fees or move in this Court for leave to appeal i.f.p. In addition, the Clerk's Office, on July 22, 1996, acting pursuant to the Leonard procedure, sent McGann a notice of intent to dismiss unless, within 30 days, he filed an authorization form, authorizing the institution where he was incarcerated to send this Court a certified copy of his prison account statement for the past six months and to debit from his prison account the fee payments required by the PLRA. In a letter filed July 30, 1996, McGann replied that his financial resources were minimal, thereby implying that he qualified for i.f.p. status, but that he was not required to comply with the PLRA requirements because he was no longer a prisoner.

Discussion

I. Application of PLRA requirements to released prisoners

Our initial question is whether the PLRA requirements, applicable to a person who files an appeal (or a complaint) while a prisoner, continue to apply after the person has been released from confinement. Section 804(a)(3) of the PLRA states 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." 28 U.S.C. § 1915(b)(1) (as amended). Section 804(a)(3) also specifies that the payments are to be made in installments: the initial payment is 20 percent of the greater of the average monthly deposits in the prisoner's account or the average balance in the account for the six months preceding the filing of a complaint or notice of appeal; subsequent payments are 20 percent of the preceding month's income credited to the prisoner's account in each month that the account exceeded $10. Id. § 1915(b)(1), (2) (as amended).

These provisions create a facial inconsistency as applied to a released prisoner. On the one hand, the statute broadly states that a prisoner who files an appeal "shall be required" to pay filing fees, and McGann was a prisoner when he filed his appeal. On the other hand, the amounts required to be paid are to be calculated as percentages of the balances of, or deposits into, the prisoner's prison account and are to be debited from that account, and now that McGann is no longer a prisoner, there is no prison account from which to calculate and debit the required payments. Thus, a literal reading of all provisions of the PLRA, as applied to released prisoners, is not possible.

There are two ways this facial inconsistency could be resolved. The PLRA could be construed to mean that once a prisoner files a complaint or appeal, he becomes liable for the full amount of filing fees, and, if released, must then pay the entire remaining amount of those fees or have his complaint or appeal dismissed. Alternatively, the PLRA could be construed to mean that the required partial fee payments are to be made only while the prisoner remains in prison, and that, upon his release, his obligation to pay fees is to be determined, like any non-prisoner, solely by whether he qualifies for i.f.p. status.

We think that the second construction better conforms to the overall structure of the PLRA. Though Congress specified that a prisoner "shall" pay the full amount of filing fees, the detailed mechanism it created for implementing this obligation by debiting prison accounts demonstrates that Congress expected the new payment requirement to apply to a prisoner who remains incarcerated. Indeed, if the payment obligation continued after release, the released prisoner, lacking a prison account from which partial payments could be debited, would have to pay the entire balance of the fee in a single payment, a result that would be more onerous than that imposed on those who remain incarcerated. It is not likely that Congress intended such a result. A released prisoner may litigate without further prepayment of fees upon satisfying the poverty affidavit requirement applicable to all non-prisoners.

This construction of the PLRA fully comports with the congressional purpose of deterring prisoner suits by making their prison accounts subject to fee payments. See Leonard, 88...