FILE D
United States Court of Appeals
Tenth Circuit
PU B L ISH March 18, 2009
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court
FO R T H E TE N T H C IR C U IT
OLIVER BOLING-BEY,
Plaintiff-Appellant,
v.
No. 08-3166
U.S. PAROLE COM M ISSION; (D.C. No. 5:07-CV-03283-SAC )
PAM ELA A. POSCH, Attorney, ( D. Kan.)
in her individual and official capacity;
JEFFERY KOASTBAR, Examiner,
in his individual and official capacity;
SAM UEL ROBERTSON, Examiner,
in his individual and official capacity;
FEDERAL BUREAU OF PRISONS;
ALBERT W ILSON, Case M anager,
in his individual and official capacity;
M IKE GRAY, Case M anager, in his
individual and official capacity,
Defendants-Appellees.
SE C O N D O R D E R R E Q U IR IN G C O M PL E T IO N O F
IN FO R M A PA U PE R IS A PPL IC A T IO N
Before K E L L Y , PO R FIL IO , and O ’B R IE N , Circuit Judges.
The matter before the court is the “Reply M otion 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 M otion for
Leave to Proceed on Appeal W ithout Prepayment of Costs or Fees (ifp M otion),
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 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.
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.
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I. A ppellate IF P requirem ents
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:
1
Boling-Bey filed his complaint on a court-provided form for prisoner civil
rights actions arising under 42 U.S.C. § 1983, and he also invoked 42 U.S.C.
§§ 1985(3) and 1986. The complaint concerned allegedly unconstitutional actions
by the defendants in connection with a re-parole hearing and decision. Because
his damages claims were directed at federal actors rather than state actors, the
district court construed those claims as arising under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather than
§ 1983, and supplied several grounds for dismissing them for failure to state a
claim upon which relief could be granted.
W e need not consider at this juncture whether Boling-Bey’s damages
claims arise under §§ 1983, 1985(3), and 1986, as he contends in his appellate
brief, or under Bivens. Section 1915(a)(2) applies to prisoners bringing civil
actions and appeals from judgments in civil actions, which is clearly the case here
regardless of the answer to Bivens question. To the extent Boling-Bey sought
declaratory or injunctive relief, the district court declined to exercise its equitable
power to grant injunctive relief and explained that he must bring those claims in a
habeas petition under 28 U.S.C. § 2241.
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Prior A pproval. 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.
2
Prior to amendment in 2002, Rule 24(a)(3) contained no subparagraphs, and
in its entirety is substantively identical to current Rule 24(a)(3)(A):
Prior A pproval. 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,
(continued...)
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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.
2
(...continued)
may proceed on appeal in forma pauperis without further
authorization, unless 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. In that event, the district court must state in writing its
reasons for the certification or finding.
Fed. R. App. P. 24(a)(3) (2002).
3
W e note that the PLRA does not apply to habeas petitions filed under
28 U.S.C. §§ 2241, 2254 or 2255, which are not civil actions for purposes of
§ 1915(a)(2). See M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.
1997). Our discussion is confined to appeals from judgments in civil actions or
proceedings.
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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.
M eadors, 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. W e 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
4
The statute provides: “All laws in conflict with [general rules of practice
and procedure for cases in courts of appeals] shall be of no further force or effect
after such rules have taken effect.” 28 U.S.C. § 2072(b).
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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
M itchell v. Farcass, 112 F.3d 1483, 1489 (11th Cir. 1997) (adopting Jackson);
M organ 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 M organ that the
requirements § 1915(a) imposed on prisoners conflicted with Rule 24(a)(3):
5
W e acknowledge that the Second Circuit, albeit prior to the 2002
amendment to Rule 24(a)(3), has reached a different conclusion than we do today.
See Feliciano v. Selsky, 205 F.3d 568, 571 (2d Cir. 2000) (relying on
Rule 24(a)(3) for the proposition that under the PLRA, “[a]s in the past, a
prisoner who is permitted to proceed in the district court in forma pauperis may
proceed on appeal in the same status without further authorization[,]” except
when the district court certifies that the appeal is not taken in good faith or that
the prisoner is not otherwise entitled to ifp status on appeal). To the extent the
Second Circuit adheres to this view, we respectfully disagree.
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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., M organ 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
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assessment of, a partial [appellate] filing fee under the [PLRA]” when “a prisoner
tenders no filing fee, or less than the full fee”).
This second tier of the process alerts the district court to the prisoner’s
request to continue ifp status on appeal, focuses attention on issues to be
presented on appeal,6 and requires the court to take a fresh look at the prisoner’s
ability to pay, which may have changed since the initial complaint was filed. And
focused attention on the issues to be presented facilitates the district court’s
consideration of whether the appeal is taken in good faith. See 28 U.S.C.
§ 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.”).
A motion to proceed ifp on appeal, supported by required documents, must
be made in the first instance to the district court. Fed. R. App. P. 24(a)(1). Only
if that motion is denied is there occasion to file an ifp motion with this court. The
filing must be made within 30 days after notice of a district court’s denial. See
Fed. R. App. P. 24(a)(5). Our consideration of an appropriate and timely motion
is not a review of the district court’s denial, but an original consideration. See
Fed. R. App. P. 24 advisory committee’s notes (1967) (Rule 24(a)(5) “establishes
a subsequent motion in the court of appeals, rather than an appeal from the order
6
A party is required to attach an affidavit to the ifp motion that, among other
things, “states the issues that the party intends to present on appeal.” Fed. R.
App. P. 24(a)(1)(C).
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of denial or from the certification of lack of good faith, as the proper procedure
for calling in question the correctness of the action of the district court”); see also
Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078-79 (10th Cir. 2007)
(explaining that “a party who seeks in forma pauperis status and is certified by the
district court as not appealing in good faith may nonetheless move this court for
leave to proceed on appeal in forma pauperis pursuant to the mechanism set forth
in Rule 24(a)(5)”).
In view of our holding, we reject Boling-Bey’s argument. In order to be
eligible for authorization to proceed ifp on appeal he must correct the deficiency
in his ifp M otion by submitting a certified copy of his trust fund account
statement. See 28 U.S.C. § 1915(a)(2). Because nothing in our prior case law
clearly linked the exception in Rule 24(a)(3)(B) with the PLRA, we provide
Boling-Bey another opportunity to address the matter of his appellate filing fee in
this court rather than going back to the district court.
II. Boling-B ey’s other argum ents
W e perceive three other arguments in Boling-Bey’s response, none of
which is persuasive. First, he notes that the clerk of this court already assessed
fees in this appeal, apparently implying that he already has approval to proceed
ifp on appeal. The assessment of fees by the clerk’s office is ministerial in nature
and required by § 1915(b)(1) regardless of § 1915(a):
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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.
28 U.S.C. § 1915(b)(1) (emphases added). But the clerk’s assessment of fees
does not address the substantive aspects of § 1915 and it is not an express or
implicit grant of a motion to proceed ifp on appeal. Boling-Bey’s ifp M otion is
deficient for lack of a certified copy of his trust fund account statement. This
court may order a prisoner to correct such a deficiency at any time regardless of a
prior assessment of fees or order directing a prisoner’s custodian to withhold
moneys from his trust fund account.
Second, Boling-Bey states that his “present location of confinement has in
the alternative . . . signed a contract with [him] and [his] casemanager . . . to pay
the fees agreed too [sic].” Response at 3, ¶ 7. W e read this statement to mean
that he does not have to file his account statement because he signed an
agreement authorizing prison officials to pay any partial filing fees out of his
inmate trust fund. W e flatly reject this contention. The authorization required of
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prisoners does not free them from complying with the requirements of § 1915 and
Rule 24. 7
The third and final argument we see in Boling-Bey’s Response is his
reference to the general principle of 28 U.S.C. § 1915(a)(4), that no prisoner may
be prohibited from bringing an appeal because “the prisoner has no assets and no
means by which to pay the initial filing fee.” This argument misses the point, as
the reason for having him file a certified copy of his trust fund account statement
for the six-month period immediately preceding the filing of his notice of appeal
is to determine whether he now has sufficient assets to pay the appellate filing fee
without the benefit of ifp status, not to prohibit him from taking an appeal due to
indigence.
C onclusion
In sum, regardless of ifp status in the district court, a prisoner seeking to
appeal from a judgment in a civil action or proceeding without prepayment of
costs or fees must file a motion with the district court, see Fed. R. Civ. P.
24(a)(1), and provide the financial documentation required by § 1915. The fact
that, under Rule 24(a)(3)(A), a district court does not certify that an appeal is not
taken in good faith or find that a prisoner is not otherwise entitled to proceed ifp
7
In the event that Boling-Bey suggests his case manager or the prison
confining him has agreed to pay his filing fee, a proposition we consider highly
unlikely, his appeal can continue if full payment of the fee is timely made.
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on appeal does not excuse compliance with these requirements. If the district
court denies the motion or makes the Rule 24(a)(3)(A) certification or finding, the
prisoner may file a motion with this court comporting with § 1915 and
Rule 24(a)(5). 8
Accordingly, it is ORDERED that, within twenty days of the filing date of
this order, Boling-Bey must either submit to this court “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 . . . notice of appeal,”
28 U.S.C. § 1915(a)(2), or pay his appellate filing fee in full and withdraw his ifp
M otion.
8
The district court must have the first opportunity to address the prisoner’s
motion to proceed on appeal ifp. Should the district court fail to promptly decide
the motion, this court may be forced to deem it denied in order to avoid
unwarranted delay.
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Failure to comply with this order may result in dismissal of this appeal without
further notice. See 10th Cir. R. 3.3(B); 42.1.
Entered for the Court
ELISABETH A. SHUM AKER, Clerk
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