[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 07, 2002
No. 01-14726 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 01-00638-CV-J-25
WILLIAM A. DUPREE,
Plaintiff-Appellant,
versus
R.W. PALMER, Officer sued in
his individual capacity and
official capacity,
A. A. HIGGS, Sgt., sued in his
individual capacity and
official capacity, et. al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(March 7, 2002)
Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
William A. Dupree, a state prisoner, appeals the district court’s order
dismissing his pro se 42 U.S.C. § 1983 civil rights complaint. The district court
dismissed Dupree’s complaint without prejudice under the three strikes provision
of 28 U.S.C. § 1915(g) without allowing him an opportunity to pay the filing fee.
We affirm.
I.
Dupree first argues that the district court abused its discretion by denying his
motion to proceed in forma pauperis and then dismissing his § 1983 civil rights
complaint under the three strikes provision of § 1915(g), without allowing him an
opportunity to arrange payment of the $150.00 filing fee. Dupree argues that since
the district court only denied his motion to proceed in forma pauperis, he should
have been allowed an opportunity to pay the filing fee in order to proceed with his
complaint.
This court reviews de novo the district court’s interpretation of the Prison
Litigation Reform Act’s (PLRA) filing fee provision. Hubbard v. Haley, 262 F.3d
1194, 1196 (11th Cir.), petition for cert. filed, (U.S. Nov. 19, 2001) (No. 01-7093).
The “three strikes rule” of the PLRA states:
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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. § 1915(g) (1994).
The purpose of the PLRA is to curtail abusive prisoner litigation. Section
1915 “only allows a prisoner to file three meritless suits at the reduced rate
provided by that section.” Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th
Cir. 2001). “After the third meritless suit, the prisoner must pay the full filing fee
at the time he initiates suit.” Id.
This court has not directly addressed whether the district court must give a
prisoner an opportunity to pay the full filing fee prior to dismissing a § 1983
complaint pursuant to the three strikes provision of § 1915(g). We stated in
Vanderberg, however, that after three meritless suits, a prisoner must pay the full
filing fee at the time he initiates suit.
This court has affirmed district courts’ orders dismissing § 1983 complaints
without prejudice pursuant to § 1915 in cases that raised other issues. See Rivera
v. Allin, 144 F.3d 719, 732 (11th Cir. 1998) (holding that § 1915(g) does not
violate a prisoner’s right to access the courts, separation of powers, due process, or
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equal protection); Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999)
(noting Sixth Circuit’s holding in Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir.
1998), that § 1915(g) does not violate ex post facto laws). Further, both the Ninth
Circuit and the Sixth Circuit have affirmed district court’s orders dismissing cases
without prejudice under the three strikes provision of § 1915(g). See Shabazz v.
Campbell, 12 Fed.Appx. 329, 330 (6th Cir. 2001) (unpublished) (stating that
because prisoner’s complaint clearly satisfied the provisions of § 1915(g) at the
moment of filing, the district court had no authority to consider the merits of the
complaint); McGee v. Myers, 10 Fed.Appx. 528, 529 (9th Cir. 2001) (unpublished)
(affirming district court’s denial of prisoner’s request for in forma pauperis status
and dismissal of complaint without prejudice pursuant to § 1915(g)).
Thus, we conclude that the proper procedure is for the district court to
dismiss the complaint without prejudice when it denies the prisoner leave to
proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).
The prisoner cannot simply pay the filing fee after being denied in forma pauperis
status. He must pay the filing fee at the time he initiates the suit. Accordingly, in
the instant case, we conclude that the district court did not abuse its discretion in
dismissing Dupree’s complaint without prejudice.
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II.
Dupree next argues that this case should be reversed and remanded to the
district court because it is moot. According to Dupree, since he has now paid the
filing fee for this case in full, his complaint is re-instated and the appeal is moot.
In Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen, 815 F.2d 1435 (11th Cir.
1987), we addressed the issue of mootness. We held that “[t]he case or
controversy requirement of the Constitution requires that moot cases be dismissed;
in a moot case, there is no longer the vitality and interest among the parties that our
adversary system of justice requires.” Id. at 1448. As the Supreme Court has
made clear, the “burden of demonstrating mootness ‘is a heavy one.’” County of
Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642
(1979) (citation omitted). In County of Los Angeles, the Supreme Court articulated
a two part test for mootness:
Simply stated, a case is moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome.
We recognize that, as a general rule, voluntary cessation
of allegedly illegal conduct does not deprive the tribunal of power
to hear and determine the case, i.e., does not make the case moot.
But jurisdiction, properly acquired, may abate if the case
becomes moot because
(1) it can be said with assurance that there is no reasonable
expectation . . . that the alleged violation will recur, and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation.
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When both conditions are satisfied it may be said that the case is moot
because neither party has a legally cognizable interest in the final
determination of the underlying questions of fact and law.
440 U.S. at 631, 99 S.Ct. at 1383 (citations and quotations omitted).
We further conclude that because Dupree’s paying of the filing fee after the
district court dismissed his complaint did not re-instate the complaint, this case is
not moot.
For the foregoing reasons, we conclude that the district court properly
dismissed Dupree’s complaint without prejudice. Accordingly, we affirm the
judgment of dismissal.
AFFIRMED.
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