Wooten v. District of Columbia Metropolitan Police Department

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed November 18, 1997

No. 97-7103

Bruce F. Wooten,

Appellant

v.

District of Columbia Metropolitan

Police Department, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(97cv00831)

Bruce F. Wooten, pro se, was on the motion to proceed in
forma pauperis.

Before: Wald, Silberman, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Bruce Wooten, a frequent filer,
is a prisoner appearing pro se. A district court order barred
him from filing another civil action unless he sought the
district court's leave, and unless he certified "that any such
complaint raises new matters never before decided on the
merits by any federal court." Wooten tried to file a new
complaint without complying with the order. The district
court denied him leave. After Wooten filed a notice of appeal
from the denial, the district court certified that his appeal was
not taken in good faith. See Fed. R. App. P. 24(a). The Clerk
of the court of appeals issued an order giving Wooten three
choices: pay the $105 docketing fee; file a motion to proceed
in forma pauperis, with a signed form consenting to collec-
tion of the fee from Wooten's prison trust account, pursuant
to 28 U.S.C. s 1915, as amended by the Prison Reform
Litigation Act; or suffer dismissal of his appeal for lack of
prosecution. Wooten chose option two, filed his motion with
this court, sent in his consent form and requested the ap-
pointment of counsel.

This sequence of events, though hardly uncommon, raises
several issues of first impression in our court concerning
amended s 1915. The first issue deals with s 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."
Does this provision, a half-century old and unchanged by the
Prison Reform Litigation Act of 1995, still apply to prisoner-
litigants like Wooten? The Sixth Circuit holds that it does
not, in light of s 1915(b)(1): "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." See McGore v. Wrigglesworth, 114
F.3d 601 (6th Cir. 1997); Floyd v. United States Postal
Service, 105 F.3d 274 (6th Cir. 1997). Section 1915(b)(1),
according to the Sixth Circuit, renders all of s 1915(a) inap-
plicable to prisoners appealing in forma pauperis. We join
the Fifth Circuit, see Baugh v. Taylor, 117 F.3d 197 (1997),
and the Seventh, see Newlin v. Helman, 123 F.3d 429, 432
(1997), in rejecting this conclusion. The notwithstanding
clause of s 1915(b)(1) "addresses a particular element of
subsection (a), concerning the collection of the filing fee, and

provides that prisoners (unlike other plaintiffs) always must
pay in full, although other parts of subsection (b) permit
much of the payment to be deferred." Newlin, 123 F.3d at
432. As to prisoners, then, the PLRA changes the meaning
of in forma pauperis. Lack of financial resources no longer
excuses them from paying the full filing fee for an appeal.
The designation of in forma pauperis entitles prisoners to
satisfy the $105 charge on an installment plan. The purpose
of s 1915(b) is to deter frivolous litigation brought by prison-
ers in forma pauperis. See In re Smith, 114 F.3d 1247, 1249
(D.C. Cir. 1997). The purpose of s 1915(a)(3) is not simply to
deter, but to preclude prisoners (and nonprisoners) from
taking appeals in forma pauperis when they attempt to do so
in bad faith.

Since s 1915(a)(3) continues to apply, and since the district
court certified that Wooten's appeal was not taken in good
faith, Wooten must pay the full filing fee to save his appeal
from dismissal, unless the certification is set aside. The
"unless" qualification is necessary in light of Fed. R. App. P.
24(a), paragraph 3 of which provides litigants in Wooten's
position a means to challenge the district court's finding of
lack of good faith. Under Rule 24(a), if a district court denies
a litigant leave to appeal in forma pauperis, the litigant may
file a motion in the court of appeals to proceed in that status
within 30 days after service of notice of the district court's
action.

This raises the next question: should our decision on a
Rule 24(a) motion precede assessment and collection of the
filing fee? Again, we agree with the Fifth and Seventh
Circuits that it should. See Baugh, 117 F.3d at 200-01;
Newlin, 123 F.3d at 433. Logic dictates as much. The terms
of payment will depend upon how the Rule 24(a) motion is
decided. Here Wooten noted his appeal on June 19, 1997;
the order certifying his appeal as not in good faith was
entered on June 30; and Wooten filed his Rule 24(a) motion
on July 29. Whether Wooten would wish to pursue his
appeal if we refused to allow him to proceed in forma
pauperis, in other words if we sustained the district court's
certification, remains to be seen. In the event we did so rule,

the $105 would be due and payable immediately; Wooten's
failure to pay would result in the dismissal of his appeal. On
the other hand, if we disagreed with the district court and
found the appeal in good faith, Wooten could proceed in
forma pauperis by paying the initial assessment and having
his prison account docked for the balance (s 1915(b)).

We therefore proceed to Wooten's Rule 24(a) motion. "In
the absence of some evident improper motive, the applicant's
good faith is established by the presentation of any issue that
is not plainly frivolous." Ellis v. United States, 356 U.S. 674
(1978); see Sills v. Bureau of Prisons, 761 F.2d 792, 795 (D.C.
Cir. 1985); but see Newlin, 123 F.3d at 433. Here, Wooten's
repeated filing of the same complaint led to the district
court's order barring him from filing any new complaints
unless he satisfied conditions. Wooten never challenged the
injunctive order on appeal nor has he moved to have it
modified. He thus had a duty to comply with the order. See
Walker v. City of Birmingham, 388 U.S. 307 (1967). Because
Wooten disobeyed the injunction, the district court correctly
determined that his appeal from the order refusing to allow
his complaint to be filed was not taken in good faith.

Accordingly, Wooten may not proceed on appeal in forma
pauperis. He therefore cannot defer payment of the filing
fee pursuant to s 1915(b). If he is foolish enough to pay $105
to have us say essentially what we have already said about his
case, his appeal may proceed. But if he fails to pay this
amount within 14 days of receipt of our opinion and order, his
appeal shall be dismissed. See Fed. R. App. P. 3(e).

So ordered.