IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40084
Summary Calendar
DANNY LEWIS HATCHET,
Plaintiff-Appellant,
versus
UNKNOWN NETTLES, Officer,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
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February 4, 2000
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:
Danny Lewis Hatchet, Texas prisoner # 608224, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
action for failure to pay the initial partial filing fee required
by 28 U.S.C. § 1915(b) of the Prison Litigation Reform Act (PLRA)
and failure to indicate good cause for his failure to pay.
Hatchet argues that the district court erred in dismissing his
action because he had a balance of only 20 cents in his inmate
trust account and did not have sufficient assets or means to pay
the partial filing fee. He argues that under 28 U.S.C.
§ 1915(b)(4), the district court should not dismiss an action
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because the prisoner has no assets or means to pay an initial
partial filing fee.
Although the assessment of the initial partial filing fee
under § 1915(b)(1) was not error, the dismissal of Hatchet’s
action without prejudice was an abuse of discretion. See Larson
v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). The district
court made no inquiry regarding whether Hatchet had complied with
the initial partial filing fee order. Prisoners have no control
over the processing of their inmate trust-fund withdrawals after
they have consented to those withdrawals, when consent is
required. We hold that it is an abuse of discretion for a
district court to dismiss an action for failure to comply with an
initial partial filing fee order without making some inquiry
regarding whether the prisoner has complied with the order by
submitting any required consent forms within the time allowed for
compliance.
The district court’s dismissal without prejudice operates as
a dismissal with prejudice because Hatchet is now barred from
refiling the action due to the expiration of the two-year
limitations period. See Long v. Simmons, 77 F.3d 878, 879-80
(5th Cir. 1996)(statute of limitations can cause a dismissal
without prejudice to operate as a dismissal with prejudice);
Owens v. Okure, 488 U.S. 235, 249-50 (1989)(the general personal
injury statute of limitations for the forum state is used for 42
U.S.C. § 1983 actions); Tex. Civ. Prac. & Rem. Code Ann.
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§ 16.003(a) (West 1998)(two-year personal injury-limitations
period in Texas). The district court also erred in dismissing
the action without considering a lesser sanction because the
dismissal operates as a dismissal with prejudice. See Long, 77
F.3d at 879-80.
In order to prevent these and other problems associated with
assessment and collection of the initial partial filing fee and
dismissal for failure to pay the initial partial filing fee, we
have decided to take this opportunity to clarify the statutory
procedures applicable to prisoners’ motions for leave to proceed
in forma pauperis (IFP) in the district courts.
A prisoner must file an IFP application containing all of
the information required by 28 U.S.C. § 1915(a)(1) and (2). In
accordance with the procedures of the district courts, a prisoner
must also complete and submit to the custodial institution any
consent or authorization forms that the custodial institution
having custody of the prisoner requires to access the prisoner’s
inmate trust account, to collect funds from the account, and to
pay those funds to the clerk of the district court. After the
prisoner files a completed IFP application, the district court
should assess an initial partial filing fee of 20 percent of the
greater of the average monthly deposits or the average monthly
balance in the prisoner’s account for the six-month period
immediately preceding the filing of the complaint.
§ 1915(b)(1)(A) & (B); see also Morgan v. Haro, 112 F.3d 788,
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788-89 (5th Cir. 1997). The order should provide for payment of
the initial partial filing fee from the prisoner’s trust fund
account when funds are available, following receipt of any
consent forms required by the custodial institution. See
Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997); McGore v.
Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997).
The IFP order should provide that if the prisoner’s trust
fund account does not contain the full amount assessed as an
initial partial filing fee, the custodial institution shall
withdraw from the account any portion of the initial partial
filing fee available and transmit it to the clerk of the district
court. See McGore, 114 F.3d at 606. Even if the account balance
is under ten dollars, the custodial institution must still
forward payments to the district court to pay the initial partial
filing fee as the ten-dollar rule of § 1915(b)(2) is applicable
only after the initial partial filing fee is paid. See id. The
action shall then proceed as if the entire initial partial filing
fee had been paid. See id. at 606. Thereafter, the custodial
institution shall withdraw from the account all funds deposited
into the account as they become available and transmit the funds
to the clerk of the district court until the entire initial
partial filing fee is paid. See id. at 606.
If the inmate trust account contained no funds for the six-
month period immediately preceding the filing of the complaint,
the district court should issue an order assessing an initial
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partial filing fee of $0, and the prisoner should be ordered to
pay the full filing fee in installments. § 1915(b)(2); McGore,
114 F.3d at 606-07. “In no event shall a prisoner be prohibited
from bringing a civil action or appealing a civil or criminal
judgment for the reason that the prisoner has no assets and no
means by which to pay the initial partial filing fee.”
§ 1915(b)(4); see also Walp v. Scott, 115 F.3d 308, 310 (5th Cir.
1997).
The IFP order should also direct the custodial institution
that after the partial filing fee has been paid, the custodial
institution shall withdraw from the inmate trust fund account the
remainder of the filing fee in accordance with § 1915(b)(2). See
McGore, 114 F.3d at 607. The custodial institution shall
withdraw 20 percent of the preceding month’s income credited to
the prisoner’s account and transmit the funds to the clerk of the
district court each time the amount in the account exceeds $10,
until the entire district court filing fee is paid.
§ 1915(b)(2); McGore, 114 F.3d at 607.
A prisoner proceeding IFP in the district court is obligated
to pay the full filing fee upon the filing of a complaint.
§ 1915(b)(1). No relief from an order directing payment of the
filing fee should be granted for a voluntary dismissal. Williams
v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997)(“[W]e hold that
the plain language of the PLRA requires that appellate fees be
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assessed at the moment the appeal is filed, regardless of whether
the appeal is later dismissed.”); McGore, 114 F.3d at 607.
If it appears that the prisoner has not complied with the
district court’s initial partial filing fee order within the
applicable time period, the district court should take reasonable
steps to ascertain whether the prisoner has complied with the
order by allowing objections to a magistrate judge’s report, see
28 U.S.C. § 636(b)(1)(C), issuing a show-cause order, see
Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980),
communicating by telephone, fax, or e-mail with officials of the
custodial institution, issuing an order to the custodial
institution, or using any other method designed to obtain the
relevant information. Any inquiry and any response should be
made a part of the record to allow this court to review any
subsequent dismissal. When a prisoner is allowed to file a
response to a magistrate judge’s report or a show-cause order, a
sworn affidavit or unsworn declaration made under penalty of
perjury under 28 U.S.C. § 1746, setting forth the details of his
compliance or copies of any relevant consent forms ordinarily
will be sufficient to avoid dismissal for failure to comply with
an initial partial filing fee order. Prisoners are reminded that
false statements in their pleadings may result in sanctions
against them, see Fed. R. Civ. P. 11(c), including dismissal with
or without prejudice, and that false statements in an affidavit
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or unsworn declaration made under penalty of perjury may result
in prosecution for perjury. 18 U.S.C. § 1621.
Accordingly, it is ORDERED that the judgment of the district
court dismissing Hatchet’s § 1983 action is VACATED and that the
case is REMANDED for further proceedings consistent with this
opinion.
VACATED AND REMANDED.