Robbins v. Switzer
| Decision Date | 07 January 1997 |
| Docket Number | 96-2212,96-2213 and 96-2855,Nos. 96-1053,96-1142,s. 96-1053 |
| Citation | 104 F.3d 895 |
| Parties | Martin D. ROBBINS, Plaintiff-Appellant, v. Clarence SWITZER, et al., Defendants-Appellees. Martin D. ROBBINS, Plaintiff-Appellant, v. Michael R. CLOUD, et al., Defendants-Appellees. Martin D. ROBBINS, Plaintiff-Appellant, v. ORANGE COUNTY COURT, et al., Defendants-Appellees. Martin D. ROBBINS, Plaintiff-Appellant, v. G.L. HOLMES, et al., Defendants-Appellees. Martin D. ROBBINS, Plaintiff-Appellant, v. C.R. HALL, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Martin D. Robbins, Bedford, IN (submitted on brief), pro se.
Pamela Carter, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.
Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.
While in state prison, Martin Robbins filed several lawsuits under 42 U.S.C. § 1983. Some were dismissed because the pleadings were inscrutable, and Robbins did not respond to judicial orders calling for clarity. Other complaints were clear enough to reveal that the suits are barred by judicial or prosecutorial immunity, or the principle of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), or fail to state claims on which relief may be granted. Robbins appealed five of his defeats. We must decide how the Prison Litigation Reform Act, Title VIII of Pub.L. 104-134, 110 Stat. 1321 (effective April 26, 1996) ("the Act"), applies to cases in which a person who is imprisoned at the time of the appeals is released before the full filing and docket fees have been paid.
Under 28 U.S.C. § 1915(a)(2), as amended by the Act,
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.
A prisoner who begins a civil action or files an appeal is not entitled to proceed without prepayment, a privilege § 1915(a)(1) extends to non-prisoners. Under § 1915(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.
One other provision of the Act, 28 U.S.C. § 1915(b)(4), is potentially relevant:
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.
Robbins was imprisoned when he filed all five appeals. Four of the suits, and two of the appeals, were filed before April 26, 1996. In none of the five suits has Robbins paid a dime toward the filing fees or tendered a prison trust account statement.
In each of the two appeals filed before April 26, the district court has certified that an appeal would be frivolous. We held in Thurman v. Gramley, 97 F.3d 185, 188-89 (7th Cir.1996), that an order permitting the appeal to go forward as non-frivolous is equivalent to "filing" the appeal for purposes of the Act, and that the obligation to pay the $105 filing and docket fees for appeals commenced before April 26 does not attach until the certification. Thurman builds on the principle, articulated in Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996), that obligations under the Act depend entirely on the filing date of the appeal. Because Robbins is now out of prison, and neither appeal was filed for statutory purposes before his release, the Act does not apply at all to his first two appeals. This conclusion enables Robbins to avoid prepaying $210 in fees, but it does not advance his claims. Both of the appeals are frivolous, as the district courts concluded. We deny Robbins' motions to proceed in forma pauperis in Nos. 96-1053 and 96-1142, and summarily affirm the judgments, for the reasons the district judges gave. Both of these suits and appeals count as "strikes" for the purpose of 28 U.S.C. § 1915(g), should Robbins return to prison and initiate new litigation.
For appeals commenced on or after April 26, 1996, the Act applies in full measure. We concluded in Martin v. United States, 96 F.3d 853 (7th Cir.1996), that an appeal begins when the notice of appeal is delivered to the clerk's office or deposited in the prison mail system, see Fed.R.App.P. 4(c)--with the consequence that a prisoner must pay in full even if the court denies leave to proceed in forma pauperis and dismisses the appeal as frivolous. Robbins was a prisoner when he filed Nos. 96-2212, 962213 and 96-2855, and therefore is obliged to pay. His current status does not alter the fact that he was a prisoner when he filed the appeals. Section 1915(b)(1) is clear: "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."
Section 1915(b)(4) provides that a case may continue even if the prisoner is unable to pay anything. If, when a prisoner files his appeal, the balance of his trust account is zero, the case proceeds despite the lack of payment. But when a prisoner does not adhere to the statutory system, a court may dismiss the appeal without regard to his ability (or inability) to pay. For example, if the prisoner does not furnish a statement of his trust account, we issue an order requiring him to do so within 21 days--with a warning that unless the information and requisite payment are forthcoming, we will dismiss the appeal for want of prosecution (but without relieving the prisoner of the obligation to pay up eventually, for that obligation is incurred, as it is for a solvent litigant, by the act of filing the notice of appeal). If the prisoner sends a trust account statement showing that even partial payment is not required, then the appeal proceeds under § 1915(b)(4), but if the prisoner disdains to comply with the order, the appeal ends.
Robbins was a prisoner and readily could have complied with § 1915(b)(1) when he filed his notices of appeal. He did not. After we issued orders requiring him to provide copies of the prison trust accounts and make partial payments, he responded that he had been released and is penniless. He did not, however, provide the copies of the prison trust account statements we directed him to supply, or an affidavit showing his current resources and income. For all this record reveals, the accounts contained ample funds at the time he filed the appeals, but were paid over to him on his release and spent on other...
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