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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