UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-60306
Summary Calendar
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LOUELLA FAY YOUNG STRICKLAND,
Plaintiff - Appellant,
versus
RANKIN COUNTY CORRECTIONAL FACILITY; ROBERT
PEEDEE; ET AL,
Defendants
BRANDON CARTER; JOSEPH O’HARA; EDWARD HARGETT,
SUPERINTENDENT, MISSISSIPPI STATE
PENITENTIARY; CENTRAL MISSISSIPPI CORRECTIONAL
FACILITY
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
January 30, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Louella Strickland, a Mississippi prisoner, appeals the
dismissal of her claims for inadequate medical treatment and
unconstitutional prison conditions. Her appeal involves two issues
of first impression in this circuit regarding the retroactive
application of the filing and fee provisions of the Prison
Litigation Reform Act, which we raise sua sponte.
I
Strickland filed suit in federal court in forma pauperis
(“i.f.p.”), alleging that prison officials were deliberately
indifferent to her serious medical needs and that prison conditions
constituted cruel and unusual punishment in violation of the Eighth
Amendment. A magistrate judge dismissed these claims as frivolous,
and Strickland filed a timely notice of appeal on April 19, 1996.
One week later, on April 26, the President signed the Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996)
(“PLRA” or “Act”), which changes the requirements to proceed i.f.p.
in federal courts. Among other things, the Act requires prisoners
to submit a prison trust fund account statement and an affidavit
listing their assets. The PLRA also requires that prisoners pay
the full amount of the filing fee for an appeal, over time if
necessary. Before we reach the merits of Strickland’s appeal, we
must decide whether she is required to meet the new PLRA
certification requirements and to pay the filing fee for this
appeal, which she filed before the Act’s effective date.1
1
We note at the outset that Fed. R. App. P. 24(a) does not
affect our analysis. Both the certification requirements and the
fee provisions of the PLRA stand in conflict with Fed. R. App. P.
24(a), which provides that once the district court certifies the
petitioner to proceed i.f.p., “the party may proceed without
further application to the court of appeals and without prepayment
of fees or costs in either court or the giving of security
therefor.” However, as we noted in Jackson v. Stinnett, Congress
has the authority to regulate matters of practice and procedure in
the federal courts, and it may, at any time, amend or abridge by
statute federal procedural rules promulgated under the Rules
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A
Section 1915(a)(2), as amended by the PLRA, provides that “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” must file an affidavit listing her assets and submit a
certified copy of her prison trust fund account. Strickland’s
application for i.f.p. status in the district court falls short of
these requirements.
The question of whether to apply the PLRA to a case pending on
its enactment is governed by the Supreme Court’s recent opinion in
Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128
L. Ed. 2d 229 (1994). Landgraf prescribes a two-stage analysis to
answer this question. First, courts should determine “whether
Congress has expressly prescribed the statute’s proper reach.”
Landgraf, 511 U.S. at ___, 114 S. Ct. at 1505 (emphasis added). If
it has, the court must follow congressional intent. Id. Second,
where the statute does not contain an express effective date,
courts must determine whether the statute would “impair rights a
party possessed when he acted, increase a party’s liability for
past conduct, or impose new duties with respect to transactions
already completed.” Id. Courts should refuse to apply a statute
retroactively if it has any of these effects. Id.
Applying a Landgraf analysis, we have already noted that the
Enabling Act. 1996 WL 714352 at * 1 (5th Cir. Dec. 11, 1996). In
Jackson, we held that Congress implicitly amended Rule 24(a) to the
extent that it actually conflicts with the PLRA. Id. at * 3. The
procedural posture of Jackson differed from this case only in that
he filed his notice of appeal after the effective date of the PLRA.
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PLRA contains no effective date provision. See Adepegba v.
Hammons, 1996 WL 742523 at * 2 (5th Cir. Dec. 31, 1996); see also
Green v. Nottingham, 90 F.3d 415, 419 (10th Cir. 1996) (PLRA does
not include the kind of “unambiguous directive” required by
Landgraf). Therefore we turn to step two, inquiring whether the
new i.f.p. certification requirements impair rights, increase
liability for past conduct, or attach new duties to completed
transactions.
The form of a filing requirement is procedural in the
strictest sense, requiring only an affidavit listing assets and a
certified copy of a prison trust fund account, which is essentially
a bank statement. Requiring prisoners to meet these procedural
requirements impairs no rights, creates no new liability, and
imposes no new duties under Landgraf step two. As the Landgraf
Court noted, “Changes in procedural rules may often be applied in
suits arising before their enactment without raising concerns about
retroactivity.” 511 U.S. at ___, 114 S. Ct. at 1502. Before
passage of the PLRA, prisoners filed similar statements to certify
their pauper status; section 1915(a)(2), as amended, essentially
changes the form of the certification. This change in form, as
with many provisions of amended section 1915, does not affect the
substance of the underlying appeal or any independent substantive
rights. See Adepegba, 1996 WL 742523 at * 3 (“Section 1915 is a
procedural statute governing the process by which indigent
individuals, including prisoners, bring civil actions or appeals in
the federal courts.”); see also Abdul-Wadood v. Nathan, 91 F.3d
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1023, 1025 (7th Cir. 1996) (“All § 1915 has ever done is excuse
prepayment of docket fees; a litigant remains liable for them, and
for other costs, although poverty may make collection
impossible.”); Green, 90 F.3d at 420 (section 1915(g) does not
impose new liabilities because it is a “procedural rule”).
Further, we held in Adepegba that the “three strikes”
provision of section 1915(g), which barred the petitioner from most
future litigation under the i.f.p. statute, was procedural.
Adepegba, 1996 WL 742523 at *3. The requirement that Strickland
certify her indigent status using different forms certainly affects
her rights no more than the three strikes provision of section
1915(g). We therefore find that the filing requirements of section
1915(a)(2) do not impose new liabilities under Landgraf, and we
hold that prisoners whose appeals were pending on the effective
date of the PLRA must refile to this court in conformity with the
amended statute before we consider their appeals on the merits.
Accordingly, we will dismiss Strickland’s appeal in thirty days
unless she refiles for i.f.p. certification in conformity with the
new requirements of the PLRA.
B
Amended section 1915(b)(1) provides 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.”
(emphasis added). This section attaches fees upon the completion
of a specific event, here the filing of an appeal. By comparison,
the certification requirements of section 1915(a) apply any time a
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prisoner is “seeking to bring or appeal a judgment in a civil
action.” Thus Congress would require the new filing during any
part of an appeal up to the point of decision. Strickland was
seeking to appeal this judgment the day the PLRA was passed and has
continued to seek appeal since, prompting our analysis in the last
section regarding the certification requirements. By contrast, the
fee requirements attach to specific “triggering events” of bringing
and filing this appeal before the enactment of the PLRA, both of
which Strickland completed before the PLRA became law.
As we decided in the previous part of this opinion, section
1915(a) requires Strickland to refile her application for i.f.p.
status to this court. We hold that her decision to continue this
suit, and her refiling for certification under the PLRA, will count
as “filing” an appeal under section 1915(b)(1) and trigger anew her
responsibility to pay appellate fees.
In Thurman v. Gramley, the Seventh Circuit consolidated
several cases to decide threshold PLRA issues. 97 F.3d 185 (7th
Cir. 1996). Thurman’s case shared roughly the same procedural
disposition as Strickland’s: he had filed his notice of appeal
before the PLRA’s effective date, and the Seventh Circuit was to
decide after the effective date whether to assess the filing fee.
Id. at 188. However, the district court in that case had
determined that Thurman’s appeal was frivolous and decertified his
i.f.p. status. Id. Thurman appealed to the Seventh Circuit to
certify that his appeal was not frivolous so that he could proceed
i.f.p. Id.
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The Seventh Circuit held that, where permission to proceed
i.f.p. is essential, the appeal will not be deemed “filed” when the
clerk’s office receives the notice of appeal or request to proceed
i.f.p. Id. at 188-89. The court held that where the appeal has
been filed, but it is ineffective because the appellant lacks
i.f.p. status, the appeal is not deemed “filed” for the purposes of
the PLRA fee provision until the motion has been acted on by the
court. Id. at 189. The court therefore gave Thurman twenty-one
days to decide whether to dismiss his appeal and avoid incurring
the filing fee. Id.
At first glance, it appears that Strickland’s case is
distinguishable; she had “carryover” i.f.p. status because the
district court did not decertify her. Rule 24(a) provides that,
once the district court granted her permission to proceed i.f.p.,
she need not get permission from the court of appeals. However,
our decision to apply the i.f.p. certification requirements of the
PLRA to her pending appeal effectively revokes her carryover i.f.p.
status from the district court, see Jackson v. Stinnett, 1996 WL
714352 at *3 (5th Cir. Dec. 11, 1996) (holding that certification
requirements of PLRA implicitly amended carryover i.f.p. provisions
of Fed. R. App. P. 24(a)). Should Strickland decline to refile
under the new procedures within thirty days, we will dismiss her
appeal, therefore permission to proceed i.f.p. is essential in this
case just as it was in Thurman. Following the rationale of the
Seventh Circuit, we will deem Strickland’s appeal in this court to
be “filed” under the PLRA if and when she refiles under the new
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certification requirements of the Act. Should she decide to
refile, she “shall be required to pay the full amount of a filing
fee.” 28 U.S.C. § 1915(b)(1), as amended.
However, as in our analysis of the PLRA certification
requirements, we must also consider whether assessing those fees in
an appeal pending on the Act’s effective date is consistent with
Landgraf. The analysis under Landgraf step one is the same;
Congress provided no explicit instruction about whether to apply
the fee provision to pending cases. Therefore we proceed to step
two, asking whether the statute “would impair rights a party
possessed when he acted, increase a party’s liability for past
conduct, or impose new duties with respect to transactions already
completed.” Landgraf, 511 U.S. at ___, 114 S. Ct. at 1505. Of
course there is no absolute “right” to proceed in a civil action
without paying a filing fee; this is a procedural privilege that
Congress may extend or withdraw. Adepegba, 1996 WL 742523 at *2;
Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969).
Furthermore, the fee provision does not increase liability for
past conduct or impose new duties for completed transactions.
After our order in this case, Strickland will face a choice: refile
for certification and pay the filing fee, or drop the appeal.
Until she makes this choice, Strickland’s decision to appeal the
magistrate’s dismissal is neither “past conduct” nor a “completed
transaction.” The fee provision will not attach automatically to
her notice of appeal, which has been completed, and it will not
work unfair surprise to her. We will assess the fee only after
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Strickland has had a chance to evaluate her claims and decide that
the merits of her appeal justify paying appellate fees. Because
imposing fees after her decision to pursue her appeal does not
attach new liabilities to completed conduct, we find that assessing
her appellate fees under section 1915(b) is completely consistent
with Landgraf.2
II
We therefore will not consider Strickland’s appeal “filed” for
2
In so holding, we disagree with the Tenth Circuit’s fiat
in White v. Gregory that the PLRA simply does not apply to cases
pending on its enactment. 87 F.3d 429, 430 (10th Cir. 1996).
However, we agree to some extent with the conclusions reached by
the Second and Seventh Circuits, both of which have applied the fee
provisions of the PLRA to cases pending on the statute’s enactment.
The Second Circuit has held that the fee provisions should apply to
most pending appeals. In Covino v. Reopel, the court held that the
burdens of the PLRA are “both slight and entirely avoidable,” and
that the purpose of the Act was to make prisoners feel the
deterrent effect of filing fee obligations before burdening the
court with frivolous appeals. 89 F.3d 105, 107-08 (2d Cir. 1996).
The Covino panel held that, because no judicial time had been
invested in the appeal, and because the appellant could not
demonstrate that he had expended significant time and effort
preparing a brief, the Congressional purpose would be best advanced
by applying the statute to the pending appeal. However, in
subsequent cases, the Second Circuit has declined to apply the
statute retroactively in cases that have reached the court and been
briefed, apparently out of concern for parties who had briefed
appeals, but who would not pursue them if required to pay. See
Duamutef v. O’Keefe, 98 F.3d 22, 24 (2d Cir. 1996) (distinguishing
Covino on grounds that appellant had briefed appeal, but not
engaging in Landgraf analysis); Ramsey v. Coughlin, 94 F.3d 71, 73
(2d Cir. 1996) (same). To the extent that the Second Circuit
believes that such prejudice would implicate Landgraf concerns, we
disagree.
We are more inclined toward the approach of the Seventh
Circuit in Thurman, as discussed above, deciding that the PLRA
provisions should apply after the appellant had time to consider
whether to continue with his appeal. The Seventh Circuit gave the
appellant, on procedural footing similar to Strickland’s, twenty-
one days to submit to the fee requirements of the Act or dismiss
his suit, but refused to assess fees before then. Thurman, 97 F.3d
at 189.
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purposes of section 1915(b), as amended, until she has applied to
this court to proceed in forma pauperis under the amended
provisions of section 1915(a)(2). She has thirty days in which to
do so, after which time we will dismiss her appeal. See Jackson,
1996 WL 714352 at * 4 (giving petitioner thirty days to refile
under PLRA); Covino, 89 F.3d at 108-09 (same); see also Thurman, 97
F.3d at 189 (giving Thurman twenty-one days to dismiss appeal and
avoid appellate fees). If Strickland submits the required
affidavits and certified copy of her trust fund account statement
as required by the statute, we will assess and collect the full
filing fee, subject to the installment provisions of section
1915(b).
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