UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50891
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Gary Reed Walp,
Plaintiff-Appellant,
versus
Wayne Scott, Director, Texas Department of Criminal Justice,
Institutional Division; Allen B. Polunsky; Ellen J. Halbert; Carole
S. Young; Joshua W. Allen; R.H. Duncan; John R. Ward; John David
Franz; Nancy Patton; Carol S. Vance,
Defendants-Appellees.
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Appeal from the United States District Court for the
Western District of Texas
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June 6, 1997
Before WISDOM, BENAVIDES, and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
This case involves an appeal from the district court’s denial
of in forma pauperis (“IFP”) status and the subsequent dismissal of
a prisoner’s claim brought pursuant to 42 U.S.C. § 1983. The
district court interpreted the recently enacted Prisoner Litigation
Reform Act of 1996 (“PLRA” or “the Act”)1 to bar the filing of a
second civil rights complaint because the appellant had not fully
paid the costs associated with filing a previous claim. Because
the district court’s decision was not authorized by the language of
the PLRA and was inconsistent with the statutory scheme, we vacate
the judgment of the district court.
I. Background
On May 28, 1996, Gary Reed Walp filed a complaint in federal
district court under 42 U.S.C. § 1983 alleging that several of the
prison guards where he is confined violated his constitutional
rights. In addition, Walp filed a motion to proceed IFP and
documents regarding his financial status necessary to comply with
the PLRA. See 28 U.S.C. § 1915(a). Walp was assessed an initial
filing fee of 14¢ and granted permission to proceed IFP upon the
court’s receipt of the requisite payment. See id. § 1915(b).
On August 30, 1996, Walp filed the subject § 1983 claim and
motion to proceed IFP.2 The district court sua sponte entered an
1
The federal in forma pauperis statute is codified at 28
U.S.C. § 1915. The PLRA significantly amended that statute. See
Pub. L. No. 104-134, 110 Stat. 1321 (1996).
2
Walp’s motion contained sufficient documentation to satisfy
the requirements of § 1915(a) of the Act. This documentation
included Walp’s declaration, under penalty of perjury, that he had
no assets or financial resources with which to pay the requisite
filing fees. In addition, Walp provided certification from the
Texas Department of Criminal Justice that both his current account
balance and his average account balance for the previous six months
were $0.00.
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order denying the motion to proceed IFP and dismissing the
complaint. The court held that unless Walp’s previously filed
complaint was dismissed voluntarily or for failure to prosecute,
Walp could not file any other complaints until the full filing fee
was paid in his previously filed case. Because Walp had paid only
14¢ toward the $120 filing fee in the previously filed case, the
court denied IFP status and dismissed the complaint.
Walp timely filed his notice of appeal. On February 26, 1997,
this court granted Walp’s motion to proceed IFP on appeal. This
appeal followed.
II. Discussion
When Congress originally enacted the federal in forma pauperis
statute, it “intended to guarantee that no citizen shall be denied
an opportunity to commence, prosecute, or defend an action, civil
or criminal, in any court of the United States, solely because ...
poverty makes it impossible ... to pay or secure the costs of
litigation.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct.
1728, 118 L.Ed.2d 340 (1992) (internal quotations and citations
omitted). At the same time that it sought to increase indigent
persons’ access to the courts, however, “Congress recognized that
a litigant whose filing fees and court costs are assumed by the
public, unlike a paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repetitive lawsuits.”
Id. (internal quotations and citations omitted). Therefore,
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Congress included a statutory provision that allowed a court to
dismiss a pauper’s case if the court was satisfied that the
complaint was frivolous or malicious. Id.; see also 28 U.S.C. §
1915(d) (1994), amended by 28 U.S.C. § 1915(e) (Supp. 1997).
In 1996, in response to an “alarming explosion in the number
of frivolous lawsuits filed by State and Federal prisoners,”3
Congress amended the federal IFP statute by enacting the PLRA. The
PLRA includes a number of provisions intended “to discourage
frivolous and abusive prison lawsuits.”4 First, the Act removes
some of a federal court’s discretion by requiring the court to
dismiss a case if it determines that the action or appeal is
frivolous, malicious, or fails to state a claim upon which relief
may be granted. 28 U.S.C. § 1915(e)(2). Second, the PLRA requires
inmates who file lawsuits to pay eventually the full amount of
their court fees and other costs and establishes a garnishment
procedure to ensure the collection of such debts. See id. §§
1915(a), (b), & (c). Third, the Act generally revokes a prisoner’s
privilege to proceed IFP in any civil action if the prisoner has,
on three prior occasions during detention, had an action or appeal
dismissed as frivolous, malicious, or for failing to state a claim.
Id. § 1915(g); see generally Adepegba v. Hammons, 103 F.3d 383 (5th
Cir. 1996) (resolving a number of issues of first impression
3
See 141 CONG. REC. S14413 (daily ed. Sept. 27, 1995).
4
Id.
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involving § 1915(g)).
Nowhere does the PLRA require a prisoner to pay the entire
filing fee in a prior civil case before filing a second complaint.
We believe that this fact, in and of itself, warrants reversal of
the district court’s decision in the instant case. See Pratt v.
Hurley, 79 F.3d 601, 603 (7th Cir. 1996) (reversing the district
court’s “homemade rule that paupers can pursue only one case at a
time” and noting that such a rule “lacks statutory support and
cannot be reconciled with the courts’ obligation to exercise their
jurisdiction”). In addition, however, we believe that the district
court’s decision was inconsistent with the balance Congress struck
between ensuring poor persons’ access to the courts and
discouraging prisoners from filing frivolous claims.
We emphasize that Walp has thus far complied with the filing
requirements and garnishment procedures of the PLRA with respect to
both of his complaints.5 Under these circumstances, dismissal of
Walp’s second complaint contradicted the directive of the PLRA that
“[i]n no event shall a prisoner be prohibited from bringing a[n
action] for the reason that the prisoner has no assets and no means
5
Although the Seventh Circuit has suggested that
noncompliance with the requirements of the Act could effect a
waiver of IFP status in subsequently filed cases, this rule is not
implicated in the instant case. See Thurman v. Gramley, 97 F.3d
185, 188 (7th Cir. 1996) (“Now that payment of the filing fee is
obligatory, we will take nonpayment (for any reason other than
destitution) as a voluntary relinquishment of the right to file
future suits in forma pauperis”). We express no view regarding the
merits of the Seventh Circuit’s position.
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by which to pay the initial filing fee.” 28 U.S.C. § 1915(b)(4).
Conversely, the decision to allow Walp to proceed IFP with his
second complaint is consistent with the purposes of the Act, so
long as he remains ultimately liable for the costs associated with
the case. See Strickland v. Rankin County Correctional Facility,
105 F.3d 972, 975 n.2 (5th Cir. 1997) (noting that “the purpose of
the Act was to make prisoners feel the deterrent effect of filing
fee obligations before burdening the court with frivolous
appeals”).
This court has recognized that the PLRA was intended “only to
penalize litigation that is truly frivolous, not to freeze out
meritorious claims or ossify district court errors.” Adepegba, 103
F.3d at 388. The effect of the district court’s decision, however,
was precisely to bar a potentially meritorious civil rights
complaint solely because Walp had not paid the entire costs
associated with filing his first claim--which, for all we know, may
also have merit.
Even assuming that one or both of Walp’s § 1983 claims are
frivolous, the district court’s decision remains problematic. The
court failed to follow the procedure that this court has
established for screening frivolous IFP claims, which requires an
initial determination of IFP status based solely on economic
factors, followed by an assessment of the applicability of the
statutory justifications for dismissal. Mitchell v. Sheriff Dep’t,
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Lubbock County, Texas, 995 F.2d 60, 62 n.1 (5th Cir. 1993).
Moreover, while the Act explicitly revokes a prisoner’s privilege
to proceed IFP if the prisoner has had three actions or appeals
dismissed as frivolous, malicious, or for failing to state a claim,
the district court’s decision had the practical effect of limiting
Walp to one IFP claim (regardless of its merits). In other words,
although Congress has allowed prisoners three strikes before
authorizing courts to call them out, the district court
impermissibly limited Walp to one swing-—whether he connects or
not.
III. Conclusion
The district court’s order, which required a prisoner to pay
the entire filing fee in a civil rights case before filing a second
complaint, was not supported by the plain language of the statute.
Moreover, the court’s application of this rule to a prisoner who
had complied with the procedures of the PLRA was inconsistent with
the purposes underlying the Act. Finally, the district court’s
order had the effect of impermissibly limiting the number of
claims, frivolous or otherwise, that a pauper may bring. For the
foregoing reasons, the judgment of the district court is VACATED
and the case is REMANDED with instructions that the district court
issue an order requiring payment pursuant to the provisions of §
1915(b)(2) of the PLRA.
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