Haynes v. Scott

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 96-10417

(Summary Calendar)
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HARRY DEAN HAYNES,

Plaintiff - Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
RAYMOND VILLARREAL; CALNALAS, LVN,

Defendants - Appellees.

Appeal from the United States District Court
For the Northern District of Texas

June 12, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Harry Haynes appeals the dismissal of his 42 U.S.C. § 1983
suit against various prison officials for deliberate indifference

to his serious medical needs. His appeal raises two issues of

first impression in this circuit regarding the applicability of the

Prison Litigation Reform Act to nonprisoners, which we raise sua

sponte.

I

Haynes filed this section 1983 action against Wayne Scott, the
director of the Texas Department of Criminal Justice, Institutional

Division; Raymond Villarreal; and Nurse Irene Canalas,1 alleging

that they denied him penal medical care while in lock-up. Haynes

alleges that prison officials withheld prescribed medication and

that, as a result, Haynes required surgery that otherwise would

have been unnecessary. Haynes charges that the prison’s deliberate

indifference to his serious medical needs violated his Eighth and

Fourteenth Amendment rights.

The district court granted Haynes permission to proceed in

forma pauperis (“i.f.p.”) and advised him that he must notify the

district court clerk’s office of any change in address from his

prison in Teague, Texas. The court referred the case to a United

States magistrate judge. On March 3, 1996 the prison moved Haynes

to Huntsville, Texas, and told him that his status was “in

transit.” On March 5, the Huntsville prison sent him to a

different prison in the city. On March 6, prison officials

notified Haynes for the first time that he was being processed for

parole. On March 7, the second Huntsville prison released Haynes

on parole, and Haynes went to Midland, Texas. On March 8, Haynes

notified the district court clerk by mail of his change in address.

Although receipt of this letter does not appear on Haynes’s docket

sheet, he alleges that the clerk’s office placed the letter in his

correspondence file.

On March 12, the district court mailed certain documents

1
Haynes misspelled Canalas’s last name and did not know her first name
when he filed the complaint, therefore her name appears only as “Calnalas” in the
caption of this case.

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Haynes had requested to his Teague, Texas prison address. The

prison at Teague returned the letter to the court, noting that

Haynes had been paroled. The magistrate judge, reminding Haynes in

an order that he had been warned to keep the court informed of

changes in his address, dismissed Haynes’s suit with prejudice for

want of prosecution. Apparently aware of Haynes’s new address, the

magistrate judge entered final judgment March 20, 1996, which he

mailed to Haynes in Midland. Haynes filed a timely notice of

appeal to this court on April 18, 1996, asserting that the

magistrate judge abused his discretion in dismissing the suit.

II

Haynes seeks to avoid paying docketing fees by pursuing this

appeal under 28 U.S.C. § 1915. Days after Haynes filed his notice

of appeal, the President signed into law the Prison Litigation

Reform Act, P. L. No. 104-207, 110 Stat. 1321 (1996) (“PLRA” or

“Act”), which amends the requirements for proceeding i.f.p. in the

federal courts. The PLRA adds both a new filing procedure and a

new fee requirement, and we have held that these requirements apply

to appeals pending on the effective date of the Act. Strickland v.

Rankin County Correctional Facility, 105 F.3d 973, 974-75 (5th Cir.

1997). Haynes’s suit poses the following question: Do the amended

filing and fee provisions of section 1915 apply to an appeal by a

nonprisoner? We must address the applicability of the PLRA before

considering the merits of Haynes’s appeal.

The filing provision of the PLRA has two parts. Section

1915(a)(1) requires the filing of an affidavit listing the

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petitioner’s assets, and section (a)(2) requires a certified copy

of a prison bank account statement. Under the plain language of

section (a)(2), Haynes need not submit a prison account statement:

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 . . . 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), as amended. At the time of the triggering

event, the bringing of a civil action or appeal, Haynes was a free

man, not a prisoner. Because section (a)(2) plainly applies only

to prisoners, Haynes does not need to submit any bank statements in

order to proceed i.f.p.

By contrast, it is unclear whether the affidavit requirement

of section (a)(1) applies to all i.f.p. petitioners, or only

prisoners. Section 1915(a)(1) provides:

[A]ny court of the United States may authorize the
commencement, prosecution or defense of any suit, action
or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a
person who submits an affidavit that includes a statement
of all assets such prisoner possesses that the person is
unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1), as amended (emphasis added). The wording

of section (a)(1), which refers to both “persons” and “prisoners,”

makes it unclear whether the affidavit requirement applies to all

persons or only prisoners.

Before the passage of the PLRA, section (a)(1) was a general

grant of authority for courts to authorize i.f.p. suits without

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prepayment of fees and costs, both for prisoners and nonprisoners.

See 28 U.S.C. § 1915(a)(1)(1994). The unamended section required

a petitioner to make an affidavit that he was unable to pay filing

costs or give security therefor. Id. The PLRA was designed to

curb frivolous lawsuits by prisoners, because Congress believed

that prisoners were abusing the i.f.p. statute. See Leonard v.

Lacy, 88 F.3d 181, 185 (2d Cir. 1996) (citing legislative history).

The PLRA amended section (a)(1) to require petitioners to be more

specific in their affidavits by adding a statement of assets, and

section (a)(2) added the requirement that prisoners report their

prison account balances.

Throughout amended section 1915, Congress explicitly states

whether the provisions apply generally to “persons,” presumably

anyone (including a prisoner) who qualifies for pauper status, or

“prisoners,” which the statute defines as “any person incarcerated

or detained in any facility who is accused of, convicted of,

sentenced for, or adjudicated delinquent for, violations of

criminal law or the terms and conditions of parole, probation,

pretrial release, or diversionary program.” 28 U.S.C. § 1915(h),

as amended. The wording of section (a)(1), which refers to both

“persons” and “prisoners,” makes it unclear whether the affidavit

requirement applies to all persons or only prisoners.

Because section (a)(1), as amended, is both a grant of

authority an affidavit requirement, reading that section as

applying only to prisoners would call into question the ability of

the courts to allow nonprisoners to proceed i.f.p. There is no

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indication in the statute or the legislative history of the PLRA

that Congress meant to curb i.f.p. suits by nonprisoners. The

statute is, after all, the Prison Litigation Reform Act. We think

the most natural reading of the amendments in the PLRA is that

Congress intended all petitioners to be more specific in their

(a)(1) affidavits and that it intended prisoners to meet additional

requirements under (a)(2).

The Sixth Circuit addressed this exact question in Floyd v.

United States Postal Service, 105 F.3d 274 (6th Cir. 1997). After

noting the tension between a “person” who submits an affidavit

listing all assets “such prisoner” possesses, the court concluded

that the use of the word “prisoner” was an oversight.2 Id. at 276.

The court noted that section (a)(1) begins by using the general

noun “person” to indicate that the paragraph applies to all

individuals, not just prisoners. Id.

The Floyd court noted that several other provisions of the

PLRA, such as section (a)(2) and (b), refer specifically and

exclusively to prisoners. Id. The court also noted that section

(a)(1) should be read in conjunction with section (a)(2), which

requires the reporting of a prison account statement, but only for

prisoners seeking i.f.p. status. Id. We agree with the analysis

of the Sixth Circuit and hold that the affidavit requirement of

2
The Sixth Circuit cited LEXIS for this proposition, because the
service has also apparently determined that the use of the word “prisoner” in
section (a)(1) was an oversight. In LEXIS’s online reporting of the statute, the
service places the word “person” in brackets before the word “prisoner” in
section (a)(1), then adds an explanatory note stating that “the word ‘person’ has
been inserted in subsec. (a)(1) as the word probably intended by Congress.” 28
U.S.C.S. § 1915(a)(1) (Law. Co-op, LEXIS 1996) (cited in Floyd, 105 F.3d at 277).

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section 1915(a)(1) applies to all persons applying to proceed

i.f.p.

Although Haynes must file an affidavit to proceed i.f.p., he

need not pay the filing fee required by the PLRA. As with the

prison account statement in section (a)(2), the fee requirement

applies exclusively to prisoners. 28 U.S.C. § 1915(b), as amended

(“[I]f 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). Section 1915(b) requires

prisoners who bring civil actions or file appeals to pay the filing

fee on a set schedule. When Haynes filed his notice of appeal (the

relevant triggering event for section 1915(b)), he was not a

prisoner. Therefore it is plain that he need not meet the filing

fee requirements of the PLRA. If we grant Haynes leave to file

this suit as a pauper, he will not be responsible for the filing

fee at all. Cf. McGann v. Commissioner, 96 F.3d 28, 30 (2d Cir.

1996) (declining to assess fees against petitioner who filed notice

of appeal while incarcerated, but who was released before his

appeal was heard).

We hold that the PLRA requires all petitioners to file an

affidavit complying with section 1915(a)(1), but only prisoners

must satisfy the requirements of sections 1915(a)(2) and 1915(b).

Therefore we allow Haynes thirty days to file an affidavit

complying with section 1915(a)(1) to continue with his appeal.

After thirty days, if we have not received the affidavit, we will

dismiss his appeal for failure to prosecute. See Strickland, 105

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F.3d at 976 (allowing petitioner thirty days to meet filing

requirements of PLRA); Jackson v. Stinnett, 102 F.3d 132, 137 (5th

Cir. 1996) (same).

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