Loper v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-11348
Summary Calendar

KURT WAYNE LOPER,

Petitioner-Appellant,

versus

GARY JOHNSON, Director,
Texas Department of Criminal Justice,

Respondent-Appellee.

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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 98-CV-2191
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April 15, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Kurt Wayne Loper, Texas prisoner # 577692, seeks a

certificate of appealability (“COA”) to appeal the district

court’s dismissal of his 28 U.S.C. § 2254 petition for failure to

pay the required $5 filing fee, pursuant to Fed. R. Civ. P.

41(b). Loper argues that the district court’s dismissal was

error because the Prison Litigation Reform Act (“PLRA”) does not

apply to habeas cases. His argument misapprehends the facts of

his case: the district court did not order a partial filing fee

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 No. 98-11348
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under the PLRA but determined that Loper had sufficient funds to

pay the filing fee for a habeas petition rather than proceed in

forma pauperis.

Loper does not argue that he did not have sufficient funds

to pay the required filing fee. Instead, he argues that the

district court dismissed his case prematurely. Loper contended

in his motion for an extension of time and his post-judgment

motion in the district court and contends in his motion for a COA

in this court that he timely requested that the filing fee be

withdrawn from his inmate account but that, for reasons unknown

to him, the prison delayed payment.

Although it is unclear whether the district court’s

dismissal was made with or without prejudice, it became

effectively with prejudice due to the operation of the AEDPA’s

one-year statute of limitations provision contained in 28 U.S.C.

§ 2244(d)(1). There is no clear record of delay or contumacious

conduct. To the contrary, the record makes clear that payment of

the filing fee was in fact docketed on the same day that the

district court’s dismissal order was entered. The district court

abused its discretion in dismissing Loper’s § 2254 application

pursuant to Rule 41(b). See Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1191 (5th Cir. 1992).

We therefore GRANT a COA on the issue of the district

court’s dismissal for failure to pay the required filing fee, and

we VACATE the judgment of the district court and REMAND this case

to the district court for consideration of the merits of Loper’s
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habeas claims. See 28 U.S.C. § 2253(c)(2); Whitehead v.

Johnson, 157 F.3d 384, 386, 388 (5th Cir. 1998).

COA GRANTED; JUDGMENT VACATED AND CASE REMANDED.