Smith v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 1999 Decided June 25, 1999

No. 97-7232

Alvin Darrell Smith,
Appellant

v.

District of Columbia, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 97cv02029)

Caroline M. Brown, appointed by the court, argued the
cause and filed the brief as amicus curiae on behalf of
appellant.

Alvin D. Smith, appearing pro se, was on the briefs for
appellant.

 Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for appellees. With her on the brief were John M.
Ferren, Corporation Counsel, and Charles L. Reischel, Depu-
ty Corporation Counsel.

Before: Ginsburg, Sentelle and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Pursuant to the "three-strikes"
provision of the Prison Litigation Reform Act ("PLRA"), 28
U.S.C. s 1915(g), the district court denied appellant Alvin
Darrell Smith's application to proceed in forma pauperis in
his civil suit against prison officials, and dismissed his com-
plaint without prejudice to his bringing a paid complaint.
Smith appeals the district court's order, and seeks to proceed
in forma pauperis on appeal. We conclude that he is not
entitled to in forma pauperis status in this court. We also
conclude that our denial of in forma pauperis status does not
make Smith liable for fees, although he must of course pay
the required fees in full if he wishes to proceed with his
appeal.

I. Background

Appellant Smith is a prisoner of the D.C. Department of
Corrections. On August 14, 1997, Smith mailed a complaint
to the U.S. District Court, bringing suit against the District
of Columbia, the D.C. Department of Corrections, and several
correctional officers. Smith alleged that his civil rights were
violated under 42 U.S.C. s 1983 when he was not allowed to
bring religious and educational materials when transferred
from Lorton Correctional Complex to a facility in Ohio.
Smith's complaint was accompanied by an application to
proceed in forma pauperis, and a prison trust account report
for the one-and-a-half-month period he had been at the new
facility.

On September 5, 1997, a district court judge issued an
order allowing the provisional filing of the complaint, but
requiring Smith to provide the court with a prison trust
account report from his previous institution. However, on

October 30, 1997, a second judge issued an order denying the
application to proceed in forma pauperis on the ground that
Smith on at least three previous occasions had brought civil
actions that were dismissed as frivolous, malicious, or for
failure to state a claim, so that he could not proceed in forma
pauperis under 28 U.S.C. s 1915(g). The district court cited
two cases in which Smith was plaintiff that were dismissed for
failure to state a claim on August 29, 1997 (CA No. 97-1987
and CA No. 97-1988) and one which was dismissed for failure
to state a claim on October 16, 1997 (CA No. 97-2485). After
denying in forma pauperis status, the order dismissed the
complaint without prejudice to Smith's right to file a paid
complaint.

Smith filed a notice of appeal encompassing the current
action as well as the three previously dismissed cases to
which the district court's order referred. The appeals from
the three earlier decisions were dismissed for lack of prosecu-
tion. Nos. 97-7233, 97-7231, 97-7230 (D.C. Cir. July 23,
1998). On August 17, 1998, Smith's application to proceed in
forma pauperis in this case was referred to this panel, and an
amicus was appointed on Smith's behalf.

II. The Three-Strikes Determination

Because Smith has not paid the required fees in this court,
our first question is whether he is entitled to proceed in
forma pauperis here. The District claims that 28 U.S.C.
s 1915(g) prevents Smith from proceeding in forma pauper-
is. Under that section, prisoners with three or more so-
called "strikes" may proceed in forma pauperis only in very
limited circumstances:

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. s 1915(g). In the government's view, the three
dismissals cited by the district court all count as "strikes"
under this provision, since they were all for failure to state a
claim.1 However, amicus argues that none of these three
dismissals should count as strikes. In amicus's view, this
result follows from two propositions, both of which amicus
urges us to adopt. First, amicus asserts that we should
recognize that the three-strikes determination must be based
on the situation at the time an appeal or complaint is filed,
even if, as here, the decision regarding in forma pauperis
status is actually made some time later. Second, amicus
urges that dismissals should not count as strikes until appeal
has been exhausted or waived. Amicus claims that if these
two propositions are accepted, the three cited dismissals do
not count as strikes.

However, we conclude that even assuming that we accepted
amicus's two propositions as a general matter, each of the
three cited dismissals here would nonetheless count as
strikes, because the time for appeal of those dismissals had
expired when this appeal was filed. The first two of the
dismissals in question occurred on August 29, 1997, while the
third occurred on October 16, 1997. Under F.R.A.P. 4(a)(1),
the notice of appeal in a civil action must be filed within 30
days of the challenged order or judgment. A notice of appeal
by an inmate is treated as timely if it is deposited in the
institution's internal mail system on or before the last day for
filing. F.R.A.P. 4(c)(1). The 30-day time limit is " 'mandato-

__________
1 In addition to the three dismissals cited by the district court,
the government argues that two other dismissals, both prior to the
enactment of the Prison Litigation Reform Act, should count as
strikes. Furthermore, our own examination reveals that Smith has
actually been the plaintiff in a total of seventeen civil actions while
incarcerated. Because we conclude that the three dismissals cited
by the district court all count as strikes under s 1915(g) for the
purposes of this appeal, we need not decide whether Smith has
other strikes as well.

ry and jurisdictional.' " Browder v. Director, Dep't of Correc-
tions of Illinois, 434 U.S. 257, 264 (1978) (quoting United
States v. Robinson, 361 U.S. 220, 229 (1960)). Here, the
notice of appeal of the three dismissals and the present case
was dated December 6, 1997, and was received by the district
court on December 11, 1997. Amicus argues that we cannot
determine whether the appeals from the three earlier dis-
missals were timely because it is not apparent from the
record on what date Smith mailed the notice of appeal. But
even if it is unclear precisely when the notice of appeal was
placed in the mail, it is clear that it could not have been
before December 6, the date Smith completed the notice.
Amicus also points out that the record "does not indicate
whether" any motions were filed which would have tolled the
time for filing a notice of appeal under F.R.A.P. 4(a)(4).
Amicus Br. at 12 n.3. But given that the docket contains no
mention of any such motions, it is not clear what other
"indication" amicus would want. Thus December 6 is the
earliest possible effective date of filing, which places Smith's
attempted appeals of the three earlier dismissals well outside
the 30-day period provided by F.R.A.P. 4(a).2

__________
2 It may well be that Smith's appeal in this case was also
untimely. However, because we determine that Smith is not enti-
tled to proceed in forma pauperis, we do not actually reach this
issue. Although Rule 4's timeliness requirements are jurisdictional,
determination of in forma pauperis status is in a sense logically
antecedent to the timeliness determination--an appellant who has
neither paid the full fees required nor been granted in forma
pauperis status is not entitled to have this court consider his appeal
at all, even to note untimeliness. We do not decide whether in
forma pauperis status is itself a jurisdictional issue. But see
Garcia v. Silbert, 141 F.3d 1415, 1417 n.1 (10th Cir. 1998) (stating
that s 1915(g) is not jurisdictional and electing to reach merits
although s 1915(g) precluded appellant from proceeding without fee
payment); Jackson v. Stinnett, 102 F.3d 132, 136 (5th Cir. 1996)
("[T]here is no indication that Congress meant the new i.f.p. re-
quirements to be jurisdictional."). However, we do conclude that
satisfaction of this court's fee requirements, either by full payment
or by a grant of in forma pauperis status and submission of the
initial partial payment required by s 1915(b), is an administrative

 Despite the fact that Smith did not appeal the three
dismissals at issue within the time period provided by
F.R.A.P. 4(a), amicus urges that the dismissals should not
count as strikes given that Smith filed notices of appeal of
those dismissals at the same time he filed his notice of appeal
in this case. In amicus's view, those dismissals should not
count as strikes because their appeal was "pending" when the
present appeal was filed. In other words, amicus would have
us allow a prisoner to convert what would otherwise have
been a strike into a non-strike by filing an untimely notice of
appeal. Clearly, to accept this argument would provide an
avenue for prisoners to effectively circumvent the three-
strikes provision. A prisoner barred from proceeding in
forma pauperis by the existence of previous strikes could
avoid the intended consequences of s 1915(g) by filing un-
timely appeals of the dismissals constituting strikes. Amicus
offers no statutory justification for this view, and we decline
to adopt it. Even if district court dismissals do not count as
strikes while appeal is available, once the time for appeal has
expired, that is the end of the matter, and untimely attempts
to appeal do not change the situation. At the time this appeal
was filed, Smith had at least three previous dismissals in the
district court for failure to state a claim, and the time for
appeal of those dismissals had expired. It is of no import
that the appeals of the three dismissals at issue were actually
dismissed for nonprosecution rather than untimeliness. The
district court dismissals should not fail to count as strikes
simply because the untimely appeals of those dismissals suf-
fered from other flaws as well. Thus even if amicus is correct
that we must assess the situation at the time of filing, and
that strikes do not count as long as appeal is available, these
propositions are of no help to Smith.

III. Liability for Fees

Having concluded that Smith is not entitled to proceed in
forma pauperis, we face the question of whether he now

__________
hurdle that we may properly require an appellant to clear before
considering even our jurisdiction to actually hear the appeal.

becomes liable for the full filing and docketing fees, or
whether he need only pay the fees if he seeks to proceed with
his appeal. Under the PLRA, a prisoner allowed to proceed
in forma pauperis no longer escapes liability for fees. He is
simply permitted to pay the fees in installments rather than
in a single payment. 28 U.S.C. s 1915(b). Smith, however,
is not being allowed to proceed in forma pauperis. Thus, he
must pay the full fees in advance if he wishes to pursue his
appeal. But must he also pay the full fees even if he does not
pursue his appeal?

Section 1915(b)(1) provides that "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." 28 U.S.C.
s 1915(a)(3). Thus the question is whether when a prisoner
files a notice of appeal and application to proceed in forma
pauperis, and his application is denied, we will treat him as
having "file[d] an appeal in forma pauperis" so that the fee
requirement attaches. Id. Although some courts have re-
quired prisoners to pay the full filing fee whenever their in
forma pauperis application is denied, see Newlin v. Helman,
123 F.3d 429, 434 (7th Cir. 1997); Henderson v. Norris, 129
F.3d 481, 483 (8th Cir. 1997); Leonard v. Lacy, 88 F.3d 181,
184 (2d Cir. 1996), it has not been our practice to do so. For
example, in Wooten v. District of Columbia Metropolitan
Police Department, 129 F.3d 206 (D.C. Cir. 1997), we consid-
ered a prisoner's attempt to proceed in forma pauperis on
appeal after the District Court had certified that the appeal
was not taken in good faith. We agreed that the appeal was
not in good faith and therefore that Wooten could not proceed
in forma pauperis under 28 U.S.C. s 1915(a)(3). But we did
not then require him to pay the fees, instead noting that he
could choose to pay the $105 fees and pursue his appeal, or
that if he did not pay within 14 days, his appeal would be
dismissed. Indeed, given what we perceived as the appeal's
apparent lack of merit, we suggested that it would be "fool-
ish" for Wooten to pay the fees and proceed. Wooten, 129
F.3d at 208. See also In re Smith, 114 F.3d 1247 (D.C. Cir.
1997). Similarly, several other circuits appear to follow the
practice of denying in forma pauperis status without requir-

ing fee payment. See, e.g., Rodriguez v. Cook, 169 F.3d 1176,
1182 (9th Cir. 1999); Banos v. O'Guin, 144 F.3d 883, 885 (5th
Cir. 1998); Keener v. Pennsylvania Bd. of Probation &
Parole, 128 F.3d 143, 145 (3d Cir. 1997).

In accordance with our past practice, we will not require
fee payment here, unless Smith wishes to proceed with his
appeal. Section 1915(b)(1) imposes fee liability when "a
prisoner brings a civil action or files an appeal in forma
pauperis." 28 U.S.C. s 1915(b)(1). This wording differs
significantly from that of subsection 1915(a)(2), which re-
quires a prisoner to file an affidavit of poverty and certified
copy of his prison trust fund account whenever "seeking to
bring a civil action or appeal a judgment in a civil action" in
forma pauperis. Id. s 1915(a)(2) (emphasis added). While
Smith is clearly seeking to proceed in forma pauperis, we will
not treat him as having "filed an appeal in forma pauperis"
when he has not been granted in forma pauperis status and
his appeal has not been considered.3 For the present pur-
pose, we will deem a prisoner to have "file[d] an appeal in
forma pauperis" as soon as he has both filed a notice of
appeal and been granted in forma pauperis status, but not
before.

Although requiring prisoners denied in forma pauperis
status to pay the full fees even though their appeal is not
considered would arguably provide an additional deterrent to
prisoner filings, our disposition here can hardly be viewed as
encouraging prisoner appeals. Unless he pays the required
fees, Smith's appeal will be dismissed. In addition, our
conclusion that Smith has three strikes will allow summary
treatment of any future applications for in forma pauperis
status. In our view, requiring prisoners to pay the full fees
in such situations would create either administrative difficulty
or an incentive for the prisoners to continue to pursue their
appeals. If a prisoner did not have sufficient funds to pay the
fees, requiring immediate payment in full would result pri-

__________
3 He will, however, have filed a notice of appeal, so that our
conclusion has no implications for when the appeal is filed for
purposes of F.R.A.P. 4.

marily in an ongoing collection effort for the office of the
clerk of this Court. If, on the other hand, a prisoner was able
to pay the fees in full, our requiring him to do so whether or
not he proceeded with his appeal would leave him no disincen-
tive to proceeding--if the prisoner would be responsible for
the full fees in any case, it would only make sense for him to
continue to pursue his appeal. In contrast, by imposing the
fees only if a prisoner who has been denied in forma pauper-
is status proceeds further, our approach should give such a
prisoner every incentive to consider carefully whether his
appeal warrants further pursuit.

IV. Conclusion

Because Smith had three strikes at the time he filed this
appeal, we deny his application to proceed in forma pauperis
pursuant to 28 U.S.C. s 1915(g). If he pays the filing fee
within fourteen days of receiving the court's opinion and
order, then his appeal may proceed. If not, then it will be
dismissed. See Wooten, 129 F.3d at 208.