Ayo v. Bathey ( 1997 )

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-30020.
Glenn Charles AYO, Plaintiff-Appellant,
v.
Forest BATHEY, Warden; Ralph Carrers; Lt. Levits; Sgt. Hebert;
Scott Bowles; Mark Owens, Corp.; Dep. Flattman; Dep. Repath;
Archie Kaufman, Sgt.; Corp Vado; Dep. Vansicle; and John Lane,
Defendants-Appellees.
Feb. 10, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before JOLLY, JONES and WIENER, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Glenn Charles Ayo, a Florida prisoner,
appeals the district court's dismissal of his civil rights suit
against numerous officials of St. Bernard Parish. Concluding that
the Prison Litigation Reform Act's (PLRA) amended requirements for
in forma pauperis (IFP) certification apply to cases pending on the
effective date of the PLRA and that Ayo failed to comply with the
PLRA, we revoke his previously obtained IFP status, and we shall
dismiss his appeal for lack of prosecution unless, within thirty
days, he refiles for IFP certification and submits the
documentation required by the PLRA. If he refiles timely and
properly, we shall assess and collect the full filing fee, subject
to the PLRA's installment provisions.
I.
FACTS AND PROCEEDINGS
Ayo brought a civil rights action in district court against
numerous St. Bernard Parish officials, asserting various
constitutional violations in the conditions of his confinement in
the St. Bernard Parish Prison. At that time, the district court
denied his motion to proceed IFP. The magistrate judge tried the
case over the telephone and recommended that Ayo's complaint be
dismissed with prejudice. The district court adopted the
magistrate judge's report and entered judgment for the defendants.
Ayo timely appealed the district court's order, and the district
court granted his motion to proceed IFP on appeal. We decline to
reach the merits of Ayo's appeal, however, as he has not complied
with the PLRA's amended procedure for IFP certification.
II.
ANALYSIS
On April 26, 1996, the President signed the PLRA,1 which
changed the requirements for proceeding IFP in federal courts.
Specifically, § 1915(a)(2) requires a prisoner seeking to bring or
appeal a civil action IFP to file an affidavit listing his assets
and to submit a certified copy of his trust fund account statement
(or institutional equivalent) for the 6-month period immediately
preceding the filing of the complaint or notice of appeal.
Additionally, § 1915(b) requires "a prisoner [who] brings a civil
action or who files an appeal in forma pauperis" to pay the full
amount of the filing fee, which may be collected in installments as
provided in this section.
In our recent decision in Strickland v. Rankin County
1
Pub.L. No. 104-134, 110 Stat. 1321 (1996).
Correctional Facility,2 we explicitly held that "prisoners whose
appeals were pending on the effective date of the PLRA must refile
to this court in conformity with the amended statute before we
consider their appeals on the merits."3 Applying the two-part test
recently enunciated in the Supreme Court decision of Landgraf v.
USI Film Products,4 we carefully analyzed whether PLRA §§
1915(a)(2) and (b)(1) should apply to cases pending on the
effective date of the PLRA. Under Landgraf’s first step, we
recognized that Congress specified no effective date for the PLRA;
therefore, it became effective on the day it was signed—April 26,
1996.5 We then addressed whether application of either section
would trigger any of the concerns enumerated in the second step of
the Landgraf test, i.e., whether application of these sections to
cases pending on the PLRA's effective date would (1) impair rights
a party possessed when he acted, (2) increase a party's liability
for past conduct, or (3) impose new duties with respect to
transactions already completed.6
We concluded that application of the filing requirements of §
1915(a)(2) would not implicate any Landgraf concerns as "the form
of a filing requirement is procedural in the strictest sense,"7 and
2
1997 WL 35406, --- F.3d ---- (5th Cir., January 30, 1997).
3
Strickland at *2, at ----.
4
511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
5
Strickland at *1, at ---- (citing Adepegba v. Hammons, 103
F.3d 383, 385-86 (5th Cir.1996)).
6
Strickland at *1, at ---- (quoting Landgraf v. USI Film
Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)).
7
Strickland at *2, at ----.
"this change in form ... does not affect the substance of the
underlying appeal or any independent substantive rights."8 Neither
would application of § 1915(b)(1)'s fee assessment raise any
Landgraf concerns, as the fee is not assessed until the prisoner
first evaluates his claims and decides that the merits of his
appeal justify paying appellate fees, and then refiles for IFP
certification if he desires to proceed.9
As Strickland obviously governs the instant case, we adopt in
full its holdings and reasoning and apply them to the case at hand.
The filing dates reveal that Ayo's appeal was pending on the
effective date of the PLRA. Ayo filed his notice of appeal, was
granted IFP status for purposes of appeal, and submitted his
original and supplemental briefs to this court, all before the
effective date of the PLRA. Thus Strickland requires application
of the PLRA's IFP certification procedure to Ayo's pending appeal.10
The instant case is only slightly distinguishable from
Strickland. There the prisoner obtained IFP status at the district
court level and "carried it over" to her appeal; in contrast, Ayo
acquired his IFP status by order of the district court, but for the
first time for purposes of his appeal. Yet this distinction makes
no difference, as Strickland makes clear that application of §
1915(a)(2) revokes a prisoner's previously obtained IFP status
8
Id. (citations omitted).
9
Id. at *4, at ----.
10
Although the district court granted Ayo IFP status for
appeal based on the financial information he submitted, that
information does not fulfill the requirements of § 1915(a)(2).
until it is reacquired in compliance with the PLRA.11 Thus the
PLRA's IFP certification requirements apply alike to prisoners who
filed a motion to proceed IFP on appeal prior to the effective date
of the PLRA and to those who acquired IFP status in the district
court and carried it over to the appeal before the effective date
of the PLRA.
Neither is the instant case significantly distinguishable
from Strickland simply because Ayo had fully briefed his appeal
before the effective date of the PLRA. We note that the Second
Circuit has refused to apply the PLRA to cases that are pending and
fully briefed on the effective date of the PLRA out of its concern
for parties who had briefed appeals but would not pursue them if
required to pay.12 We concluded in Strickland, however, that the
Landgraf concerns alluded to by the Second Circuit are not
material.13 Consequently, we hold that the subject PLRA provisions
apply to cases pending on the effective date of the PLRA, whether
fully briefed or not.
III.
CONCLUSION
For the foregoing reasons, we hold that (1) the PLRA's amended
IFP certification requirements apply to this case and to all cases
pending on its effective date, whether fully briefed or not, and
11
Strickland at *3, at ---- (citing Jackson v. Stinnett, 102
F.3d 132, 136 (5th Cir.1996)).
12
See Covino v. Reopel, 89 F.3d 105, 108 (2d Cir.1996);
Duamutef v. O'Keefe, 98 F.3d 22, 24 (2d Cir.1996); Ramsey v.
Coughlin, 94 F.3d 71, 73 (2d Cir.1996).
13
Strickland at *4 n. 2, at ---- n. 2.
(2) application of the PLRA revokes a prisoner's previously
obtained IFP status, whether granted in a motion to proceed IFP on
appeal prior to the effective date of the PLRA or granted in the
district court and carried over to the appeal before the effective
date of the PLRA. Accordingly, we shall dismiss Ayo's appeal in
thirty days unless within that time he refiles for IFP
certification in conformity with the PLRA. If Ayo refiles timely
and properly and submits the required documentation, we shall
assess and collect the filing fee in full, subject to the
installment provisions of § 1915(b). If not, his appeal shall be
dismissed for lack of prosecution, pursuant to Fifth Circuit Rule
42.3.