Larson v. Scott

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
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No. 97-41441
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PAUL ALLAN LARSON,

Plaintiff-Appellant,

VERSUS

HERBERT S. SCOTT, et al.,

Defendants-Appellees.

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Appeal from the United States District Court
for the Southern District of Texas
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October 26, 1998

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Paul Larson, a state prisoner, appeals the dismissal, for want

of prosecution after failing to comply with a court order, of his

pro se complaint. Finding no reversible error, we affirm.

I.

In a suit filed in October 1995, Larson asserted numerous

claims, naming twenty-seven individual and institutional

defendants. In March 1996, the district court granted Larson’s
request to proceed in forma pauperis (“IFP”). In July 1997, citing

Strickland v. Rankin County Correctional Facility, 105 F.3d 972

(5th Cir. 1997), the magistrate judge sua sponte ordered Larson to

file a new application to proceed IFP and a certification of his

inmate trust account that complied with 28 U.S.C. § 1915(a), as

amended by the newly-enacted Prison Litigation Reform Act (the

“PLRA”),1 within thirty days or pay a filing fee of $120. The

magistrate judge warned Larson that failure to comply might result

in dismissal of the complaint for want of prosecution.

Failing to heed the magistrate judge’s warning, Larson instead

filed an “objection” and moved the district court to rescind the

order. The district court denied the “objection.”

Thirty days later, the magistrate judge recommended that the

court dismiss the complaint without prejudice for failure to

prosecute, on the ground that Larson had not complied with the

order to provide the PLRA-required financial information. Larson

filed an “objection/traverse” in which he argued that the PLRA did

not require him to submit new financial information to maintain his

IFP status, because he had initiated suit and had been granted IFP

status before the PLRA’s effective date. Two months later, the

district court dismissed the complaint without prejudice for want

1
The President signed the PLRA into law on April 26, 1996. See Pub. L.
No. 104-134, 110 Stat. 1321 (1996).

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of prosecution,2 observing that the court had given Larson more

than four months to comply with the order.

II.

Construing Larson’s brief liberally, as we must do with a

pro se appellant, see Peña v. United States, 122 F.3d 3, 4 (5th

Cir. 1997), we explicate his argument as claiming that the district

court abused its discretion in dismissing his complaint for want of

prosecution. A district court sua sponte may dismiss an action for

failure to prosecute or to comply with any court order. See

FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127

(5th Cir. 1988). But Larson argues that the magistrate judge and

district court should not have applied the PLRA to him, as he had

brought his case and had been authorized to proceed IFP before the

PLRA’s effective date, and hence a dismissal based on his non-

compliance is improper.

We face, therefore, two issues: (1) whether the district court

correctly applied § 1915(a)’s certification requirements to Larson

despite his pre-effective date filing of the suit and (2) whether

the district court abused its discretion in dismissing. Larson

raises other issues, but we find them without merit and do not

2
The court neglected to enter judgment in a separate document pursuant to
FED. R. CIV. P. 58; because no party objected to the omission and the court
plainly intended to end the litigation on the merits, we may and will exercise
jurisdiction over the appeal. See Whitaker v. Houston, 963 F.2d 831, 833-34 (5th
Cir. 1992).

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address them.

A.

Whether the amended § 1915(a) applies to suits brought before

and pending at the PLRA’s effective date presents a question of

law. We review questions of law de novo. Douglas v. DynMcDermott

Petroleum Operations Co., 144 F.3d 364, 369 (5th Cir. 1998).

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 his assets and submit a

certified copy of his prison trust fund account. In Strickland, we

held that § 1915(a) applies to appeals pending before this court on

the PLRA’s effective date, and thus prisoners with pending appeals

must refile with the required prison trust fund account statement

and affidavit before we will consider the merits of their appeals.

See Strickland, 105 F.3d at 973-74. To maintain consistency in our

interpretation of § 1915(a)(2), and seeing no reason why we should

treat the case sub judice differently simply because it was in the

district rather than appellate court when the PLRA went into

effect, we extend Strickland’s holding to cases pending in the

district court on the PLRA’s effective date.

The PLRA requires a plaintiff to refile in compliance

therewith during any part of a civil action up to the point of

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decision. Because Larson was seeking to bring a civil suit on the

day the PLRA became law and continued to do so until the dismissal,

the court had the statutory authority to order the filing of an

application to proceed IFP that complied with the PLRA.3

B.

Having determined that the district court and magistrate judge

correctly applied the PLRA’s affidavit and certification

requirements, we address whether the district court abused its

discretion in dismissing the suit for want of prosecution/failure

to comply with a court order. We review a dismissal for want of

prosecution or failure to obey a court order for abuse of

discretion. Hulsey v. Texas, 929 F.2d 168, 170 (5th Cir. 1991);

McCullough, 835 F.2d at 1127.

When the magistrate judge initially ordered Larson to file an

affidavit and a certified copy of his inmate trust fund account

statement, he warned Larson that failure to comply might result in

dismissal. The court then gave Larson more than four months to

comply, and repeated its warnings of the consequences that would

3
Larson presents an additional argument that misinterprets footnote 2 of
Strickland. We specifically rejected the view expressed in Covino v. Reopel,
89 F.3d 105, 107-08 (2d Cir. 1996), that the fee and filing provisions of the
PLRA might not apply to cases that had progressed to some indeterminate stage by
the time the PLRA became effective where sufficient resources had been expended
as to justify excusing the IFP party from the PLRA’s requirements. We reiterate
that “such prejudice” to a party in an advanced stage of litigation or appeal
does not implicate Landgraf concerns. See Strickland, 105 F.2d at 975 n.2.

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follow should Larson ignore the order. The district court acted

well within the bounds of its discretion when it dismissed for want

of prosecution.

AFFIRMED.4

4
Larson's motion to enlarge the record is DENIED.

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