UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30967
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HUBERT ARVIE,
Plaintiff-Appellant,
versus
DORASEL LASTRAPES, Et Al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
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February 25, 1997
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:
Hubert Arvie, Louisiana state prisoner # 122010, pro se and in
forma pauperis, appeals the dismissal of his 42 U.S.C. § 1983
action. The case is back in our court following a remand to the
district court for the limited purpose of determining whether
Arvie’s notice of appeal was timely filed.
At issue are whether the district court (1) clearly erred in
finding that the notice of appeal was timely; (2) erred by
dismissing Arvie’s complaint as not timely filed; (3) abused its
discretion by refusing to allow Arvie to amend his complaint or by
not construing later filings as a “more definite statement”; and
(4) erred by denying Arvie’s motion for a preliminary injunction
based on a denial of access to the courts claim. But, we first
must consider the effect on Arvie’s appeal of the Prison Litigation
Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996),
which modifies the requirements for proceeding in forma pauperis in
federal court.
Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996), holds that
28 U.S.C. § 1915(g), as amended by the PLRA, applies to a prisoner,
like Arvie, whose notice of appeal was filed prior to the enactment
of the PLRA. That section provides:
In no event shall a prisoner bring a civil
action or appeal a judgment in a civil action
or proceeding under this section if the
prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any
facility, brought an action or appeal in a
court of the United States that was dismissed
on the grounds that it is frivolous,
malicious, or fails to state a claim upon
which relief may be granted, unless the
prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g) (emphasis added). Based on the information
available to us, it appears likely that Arvie has at least three
dismissals that would call into play § 1915(g), as interpreted in
Adepegba.
On 16 October 1991, our court affirmed the dismissal of a §
1983 civil rights action filed by Arvie against numerous officials
in Acadia Parish, Louisiana. Arvie v. Laffose, No. 91-4364 (5th
Cir. 16 Oct. 1991) (unpublished). Our court did not address
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whether the district court had abused its discretion by dismissing
Arvie’s complaint pursuant to FED. R. CIV. P. 41(b), because it
concluded that, as a matter of law, the complaint was frivolous,
and that dismissal was therefore proper under 28 U.S.C. § 1915(d).
Id. We are unable to determine, however, whether our court’s
disposition counts as a dismissal for § 1915(g) purposes, because
the opinion does not state whether the appeal was taken while Arvie
was a “prisoner”; that is, while he was “incarcerated or detained
in any facility”. 28 U.S.C. § 1915(g); see also 28 U.S.C. §
1915(h)(defining “prisoner” for § 1915 purposes).
On 7 May 1993, our court affirmed the district court’s
dismissal of another § 1983 complaint filed by Arvie; the dismissal
was pursuant to FED. R. CIV. P. 12(b)(6), for failure to state a
claim for which relief can be granted. Arvie v. Bailey, No. 92-
8139 (5th Cir. 7 May 1993) (unpublished). Because the opinion does
not reflect whether Arvie brought the action while incarcerated or
detained, it is again unclear whether this disposition counts
against him under § 1915(g).
Finally, on 10 November 1994, the United States District Court
for the Middle District of Louisiana dismissed with prejudice as
frivolous under 28 U.S.C. § 1915(d) yet another § 1983 action filed
by Arvie. Arvie v. Cain, No. 94-1683-B-1 (M.D. La. 10 Nov. 1994).
The district court’s opinion reflects that Arvie was an inmate when
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the action was filed. Accordingly, this dismissal counts against
Arvie within the meaning of § 1915(g).
Because Arvie’s appeal may not proceed if he has three such
dismissals under § 1915(g), and because we are able to determine
only that one of the above-discussed dispositions qualifies under
§ 1915(g), we REMAND this case to the district court for the
limited purpose of determining:
(1) whether Arvie was a prisoner (incarcerated or
detained) when he brought the appeal in Arvie v. Laffose, No.
91-4364 (appeal from a judgment entered in Civil Action No. 90
0791 0, in the United States District Court for the Western
District of Louisiana); and
(2) whether Arvie was a prisoner when he brought Arvie v.
Bailey, Civil Action No. A-90-CV-642, in the United States
District Court for the Western District of Texas.
Upon making this determination, the district court shall return the
case to this court for further proceedings as may be appropriate.
Pursuant to those district court findings, the appeal will be
dismissed if we conclude that Arvie has at least three dismissals
for purposes of § 1915(g). See Adepegba, 103 F.3d at ___, 1996 WL
742523, *6.
On the other hand, if we conclude that Arvie does not have
three such dismissals, he shall have 30 days from the date of our
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ruling to comply with 28 U.S.C. § 1915(a) and (b), as amended by
the PLRA, including:
(1) payment of the appellate filing fee of $105 to the
clerk of the district court; or
(2) filing in this court
(a) an affidavit stating all assets that he
possesses; and
(b) a certified statement by the custodian of
Arvie’s trust-fund account for the six-month period
immediately preceding 22 September 1995, the date of the
filing of the notice of appeal herein.
See Moreno v. Collins, ___ F.3d ___, 1997 WL 35408 (5th Cir. 1997);
Strickland v. Rankin County Correctional Facility, ___ F.3d ___,
1997 WL 35406 (5th Cir. 1997). Toward that end, Arvie may request
the proper forms for compliance from the clerk of this court. If
such compliance is necessary, and Arvie does not comply within 30
days, the clerk of this court is directed to dismiss the appeal for
lack of prosecution. See FIFTH CIR. R. 42.3.
REMANDED
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