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Sixth Circuit Issues PLRA IFP Order
On February 4, 1997, Boyce Martin, chief judge of the sixth circuit, issued an administrative order directing all circuit and district court judges in the sixth circuit to apply the In Forma Pauperis (IFP) provisions of the Prison Litigation Reform Act (PLRA) uniformly to all complaints or notices of appeal filed on or after March 1, 1997. Judge Martin's order aptly summarizes the IFP provisions of the PLRA. "No longer do courts first focus on the merits of a prisoner's complaint. Rather, it is the prisoner's financial status that the courts must initially examine. Pauper status for inmates, as we previously knew it, no longer exists. All prisoners while incarcerated must now pay the required filing fees and costs. When an inmate seeks pauper status the only issue is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan. Prisoners are no longer entitled to a waiver of fees and costs." The judge noted the PLRA and this order does not apply to habeas proceedings under 28 U.S.C. § 2241, 2254 and 2255.
All prisoners in the sixth circuit (MI, OH, KY and TN) who are planning to seek IFP status in federal civil litigation should read this order before filing suit because it gives a detailed explanation of what to expect when filing IFP.
The order lists the sixth circuit rulings which have been overruled by the PLRA. Clark v. Ocean Brand Tuna, 974 F.2d 48 (6th Cir. 1992) was overruled by 28 U.S.C. § 1915(e)(2) so that a prisoner's complaint must be dismissed by the court in a prefiling screening process if it is frivolous, malicious, fails to state a claim under which relief can be granted or if it seeks monetary relief from a defendant immune from money damages. No opportunity to amend the complaint is allowed. "Section 1915(e)(2) states that regardless of whether a filing fee has been paid, the district court must dismiss the case if the complaint satisfies the factors of § 1915(e)(2). Thus, even if the filing fee is paid, the district court must dismiss the complaint if it comports with § 1915(e)(2)." The court noted that non prisoners who file suit IFP, with or without counsel, are subject to this provision.
The order is explicit in stating that failure to pay the full filing fee or file the required forms for IFP status upon filing the suit or the notice of appeal will result in dismissal of the suit/appeal for want of prosecution and the entire filing fee will be assessed anyway. "If dismissed, the appeal [case] will not be reinstated despite the subsequent payment of the filing fee or request for pauper status." Which means prisoner litigants need to get it right the first time. Prisoners cannot be penalized if prison officials fail to promptly pay the filing fees when a prisoner has agreed to pay the filing fees from his prison account.
With cases involving more than one prisoner plaintiff the court said the fee would be equally divided among the plaintiffs. In class action suits only those prisoners signing the complaint are liable for paying the required fees.
The order held that the PLRA overruled sixth circuit rulings in Weaver v. Toombs, 948 F.2d 1004, 1011 (6th Cir. 1991) and Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). In Weaver the court held that district courts have discretion in assessing costs against unsuccessful IFP prisoner litigants but the court must first determine the prisoner's ability to pay the costs assessed. The PLRA supersedes Weaver. "When judgment is entered against a prisoner and costs against the prisoner are assessed, § 1915(f)(2)(A) now requires that the prisoner pay the costs either in full, or in accordance with the payment process set forth in § 1915(b)(2) ... The prisoner's ability to pay the costs is no longer an issue. Section 1915(f)(2)(B) mistakenly refers to § 1915(a)(2) as the authoritative subsection for the payment process. However, § 1915(a)(2) does not contain a payment procedure. The payment process is located in § 1915(b)(2)."
Tingler held district courts could not sua sponte dismiss prisoner suits without affording the plaintiff an opportunity to amend the complaint. "Under § 1915(e)(2), a court is required to dismiss a case when the action satisfies § 1915(e)(2)(A) or § 1915(e)(2)(B). The courts have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal. If a complaint falls within the requirements of § 1915(e)(2) when filed, the district court must sua sponte dismiss the complaint. Section 1915A also provides for sua sponte dismissals in cases brought by inmates."
The court adopted the reasoning in McGann v. Commissioner, Social Security Administration, 96 F.3d 28 (2nd Cir. 1996) and held "a prisoner is obligated to pay assessed fees and costs only while he or she remains incarcerated. After release, the obligation to pay the remainder of the fees is to be determined solely on the question of whether the released individual qualifies for pauper status. The decision of whether pauper status is available to a released prisoner will be made by the district court." The court noted that it would be nice if prison officials notified the court when prisoners with financial obligations to the courts were released. The court also noted that congress has provided no statute of limitations for closing prisoner accounts as many prisoners may not have any funds for their entire period of incarceration. "Thus, the clerk of the district court may have an open account for a prisoner for more than half a century without receiving any funds from prison authorities. Although sympathetic to the concerns of the clerks of the district courts, until congress creates a statute of limitations on the collections of such debts, the clerks of the district courts will be obligated to keep hundreds of accounts open for decades to come." See: In Re Prison Litigation Reform Act, 105 F.3d 1131 (6th Cir. 1997).
All prisoners in the sixth circuit (MI, OH, KY and TN) who are planning to seek IFP status in federal civil litigation should read this order before filing suit because it gives a detailed explanation of what to expect when filing IFP.
The order lists the sixth circuit rulings which have been overruled by the PLRA. Clark v. Ocean Brand Tuna, 974 F.2d 48 (6th Cir. 1992) was overruled by 28 U.S.C. § 1915(e)(2) so that a prisoner's complaint must be dismissed by the court in a prefiling screening process if it is frivolous, malicious, fails to state a claim under which relief can be granted or if it seeks monetary relief from a defendant immune from money damages. No opportunity to amend the complaint is allowed. "Section 1915(e)(2) states that regardless of whether a filing fee has been paid, the district court must dismiss the case if the complaint satisfies the factors of § 1915(e)(2). Thus, even if the filing fee is paid, the district court must dismiss the complaint if it comports with § 1915(e)(2)." The court noted that non prisoners who file suit IFP, with or without counsel, are subject to this provision.
The order is explicit in stating that failure to pay the full filing fee or file the required forms for IFP status upon filing the suit or the notice of appeal will result in dismissal of the suit/appeal for want of prosecution and the entire filing fee will be assessed anyway. "If dismissed, the appeal [case] will not be reinstated despite the subsequent payment of the filing fee or request for pauper status." Which means prisoner litigants need to get it right the first time. Prisoners cannot be penalized if prison officials fail to promptly pay the filing fees when a prisoner has agreed to pay the filing fees from his prison account.
With cases involving more than one prisoner plaintiff the court said the fee would be equally divided among the plaintiffs. In class action suits only those prisoners signing the complaint are liable for paying the required fees.
The order held that the PLRA overruled sixth circuit rulings in Weaver v. Toombs, 948 F.2d 1004, 1011 (6th Cir. 1991) and Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). In Weaver the court held that district courts have discretion in assessing costs against unsuccessful IFP prisoner litigants but the court must first determine the prisoner's ability to pay the costs assessed. The PLRA supersedes Weaver. "When judgment is entered against a prisoner and costs against the prisoner are assessed, § 1915(f)(2)(A) now requires that the prisoner pay the costs either in full, or in accordance with the payment process set forth in § 1915(b)(2) ... The prisoner's ability to pay the costs is no longer an issue. Section 1915(f)(2)(B) mistakenly refers to § 1915(a)(2) as the authoritative subsection for the payment process. However, § 1915(a)(2) does not contain a payment procedure. The payment process is located in § 1915(b)(2)."
Tingler held district courts could not sua sponte dismiss prisoner suits without affording the plaintiff an opportunity to amend the complaint. "Under § 1915(e)(2), a court is required to dismiss a case when the action satisfies § 1915(e)(2)(A) or § 1915(e)(2)(B). The courts have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal. If a complaint falls within the requirements of § 1915(e)(2) when filed, the district court must sua sponte dismiss the complaint. Section 1915A also provides for sua sponte dismissals in cases brought by inmates."
The court adopted the reasoning in McGann v. Commissioner, Social Security Administration, 96 F.3d 28 (2nd Cir. 1996) and held "a prisoner is obligated to pay assessed fees and costs only while he or she remains incarcerated. After release, the obligation to pay the remainder of the fees is to be determined solely on the question of whether the released individual qualifies for pauper status. The decision of whether pauper status is available to a released prisoner will be made by the district court." The court noted that it would be nice if prison officials notified the court when prisoners with financial obligations to the courts were released. The court also noted that congress has provided no statute of limitations for closing prisoner accounts as many prisoners may not have any funds for their entire period of incarceration. "Thus, the clerk of the district court may have an open account for a prisoner for more than half a century without receiving any funds from prison authorities. Although sympathetic to the concerns of the clerks of the district courts, until congress creates a statute of limitations on the collections of such debts, the clerks of the district courts will be obligated to keep hundreds of accounts open for decades to come." See: In Re Prison Litigation Reform Act, 105 F.3d 1131 (6th Cir. 1997).
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Related legal case
In Re Prison Litigation Reform Act
| Year | 1997 |
|---|---|
| Cite | 105 F.3d 1131 (6th Cir. 1997) |
| Level | Court of Appeals |
[44] A. Pauper Status On Appeal
[45] If a prisoner wishes to proceed in forma pauperis on appeal, the prisoner must file in the district court, with the notice of appeal, a motion for leave to proceed in forma pauperis, a certified copy of a prison trust account statement, and Form 4 from the Appendix of Forms found in the Federal Rules of Appellate Procedure, or an affidavit which contains the same detailed information found in Form 4. Unlike the former concept of pauper status, an individual or prisoner granted pauper status before the district court is not automatically entitled to pauper status on appeal. See Floyd, 1997 WL 22636, at *3-5; Jackson v. Stinnett, 102 F.3d 132, 134-36 (5th Cir. 1996) (noting that Prison Litigation Reform Act has superseded parts of Fed. R. App. P. 24(a)). The statute requires that a prisoner seeking pauper status on appeal must file an affidavit of indigency and a certified copy of the prison trust account statement. 28 U.S.C.A. Section(s) 1915(a)(2), 1915(b)(1).
[46] B. Failure To File Required Documents
[47] Should the prisoner fail to file the affidavit of indigency or the trust account statement, the district court shall notify the prisoner of the deficiency. The district court shall inform the prisoner that should the prisoner not file the required documents within thirty (30) days, the court of appeals may dismiss the appeal for want of prosecution under Fed. R. App. P. 3(a) and in which case the district court will assess the entire filing fee. If dismissed under these circumstances, the appeal will not be reinstated despite the payment of the full filing fee or subsequent correction of the deficiency.
[48] The prisoner may request from the district court an extension of time to pay the filing fee or seek pauper status. The motion must be filed within thirty (30) days of the district court's deficiency order or the extension motion will not be granted unless the prisoner makes an affirmative showing that he or she did not receive the deficiency order within the thirty (30) days. If such a showing sets forth the date the prisoner received the deficiency order and is made in a notarized statement or a declaration complying with 28 U.S.C. Section(s) 1746, then the district court may, in its discretion, grant an additional thirty (30) days from the date of the filing of the extension order to allow the prisoner to correct the deficiency. The extension motion will be deemed filed once the motion is given to the prison authorities for mailing and the prisoner has satisfied the verification requirements of Fed. R. App. P. 25(a)(2)(C). See also Houston, 487 U.S. at 270. The clerk of the court of appeals shall continue to monitor the fee status of each appeal. Should the prisoner fail to comply with the district court's deficiency order, the clerk of the court of appeals shall dismiss the case for want of prosecution and the district court will assess the entire filing fee, which is to be made payable to the clerk of the district court. Once dismissed under these procedures, the appeal will not be reinstated despite the payment of the full filing fee or subsequent correction of the deficiency.
[49] C. All Forms Filed And Good Faith Certification
[50] The statute states that a district court must determine in writing whether a request to appeal in forma pauperis is taken in good faith. 28 U.S.C.A. Section(s) 1915(a)(3); see also Floyd, 1997 WL 22636, at *4. In cases brought by prisoners, such a certification is not required. Section 1915(a)(3) is modified by the provisions of Section(s) 1915(b)(1) (the section begins "[n]otwithstanding subsection (a)"). See also 28 U.S.C.A. Section(s) 1915(a)(1) ("[s]ubject to subsection (b)"). For a prisoner, the question of whether the appeal is taken in good faith is irrelevant. Under Section(s) 1915(b)(1), the prisoner must pay the required filing fees regardless of the merits of the appeal. Therefore, in prisoner cases, district courts are not required to make a good faith certification under Section(s) 1915(a)(3).
[51] The statute, however, creates a different procedure for non-prisoners. The statute states that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith." 28 U.S.C. Section(s) 1915(a)(3). Courts are required to give plain meaning to the language of the statute. United States v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994). Thus, if the district court concludes that the appeal is not taken in good faith, the individual must pay the entire filing fee and may not proceed on appeal as a pauper. Floyd, 1997 WL 22636, at *4-5.
[52] There is a conflict between the statute and Fed. R. App. P. 24(a). Id. at *3-4. Rule 24(a) provides in part:
[53] If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit filed in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the district court, and by a copy of the statement of reasons given by the district court for its action.
[54] Under Section(s) 1915(a)(3), once the district court certifies that an appeal is not taken in good faith, the non-prisoner cannot seek an appeal in forma pauperis. Furthermore, the non-prisoner cannot seek an assessment under Section(s) 1915(b)(1) as this section is strictly limited to prisoners. As Section(s) 1915(a)(3), which does not permit an appeal to proceed in forma pauperis if the appeal is not taken in good faith, conflicts with Rule 24(a), the statute supersedes the rule and, therefore, the statute controls. Floyd, 1997 WL 22636, at *3-4; Jackson, 102 F.3d at 136.
[55] D. Assessment Of Fees On Appeal By District Court
[56] The statute permits any United States court to make the financial assessment for the commencement of an appeal. See 28 U.S.C.A. Section(s) 1915(a)(1). As the district court is best suited to control the assessment process, the district court should conduct the financial assessment when the prisoner seeks pauper status on appeal.
[57] Because the date the notice of appeal is filed with the district court controls the date of assessment under Section(s) 1915(b)(1); expediency requires that the district court issue the order. If the financial assessment order was delayed until the case was transferred and docketed with the court of appeals, several weeks could pass before the court of appeals could order the financial assessment. This lapse of time would allow prisoners to drain their trust accounts to avoid payment of their filing fees.
[58] In issuing the assessment order, the district court may use the same order form which is located in Section III if the prisoner does not have sufficient funds to pay the full fees. However, the current docketing and filing fees for the court of appeals total one hundred and five dollars ($105), rather than the one hundred and fifty dollars ($150) required to file a case in the district court. Under this order and our decision in Floyd, motions for pauper status before the court of the appeals no longer exist and will not be entertained by this court. These motions shall now be processed exclusively by the district courts. This order does not, however, impair an individual's ability to request records, transcripts, or counsel before this court under Section(s) 1915(c) and Section(s) 1915(e)(1).
[59] After the district court advises the court of appeals that the initial partial filing fee under Section(s) 1915(b)(1) has been assessed, the appeal may continue. If the district court concludes that the prisoner satisfies 1915(b)(4), the prisoner may proceed with the appeal without immediate payment of the initial partial filing fee. However, the statute does not relieve the prisoner from paying the required fees when funds become available in the future. Thus, the district court still must impose a fee assessment under Section(s) 1915(b)(1), and the prisoner, when he or she receives funds, must still pay the initial partial filing fee, even if the trust account contains less than ten dollars ($10). An appeal may not be dismissed when the payment of an assessment has been delayed by prison officials. A prisoner cannot be penalized when prison officials fail to promptly pay an assessment.
[60] VII. Multiple Prisoners As Parties
[61] The statute does not specify how fees are to be assessed when multiple prisoners constitute the plaintiffs or appellants. Because each prisoner chose to join in the prosecution of the case, each prisoner should be proportionally liable for any fees and costs that may be assessed. Thus, any fees and costs that the district court or the court of appeals may impose shall be equally divided among all the prisoners. This procedure also will permit easier accounting for the district courts and prison officials.
[62] In cases involving class actions, the district courts are not to assess fees and costs to each member of the class. As a class action certification is normally made long after the complaint is filed, the responsibility to pay the required fees and costs shall rest with the prisoner or prisoners signing the complaint. In class actions on appeal, the prisoner or prisoners signing the notice of appeal shall be obligated to pay all appellate fees and costs.
[63] VIII. Weaver And Tingler
[64] In Weaver v. Toombs, 948 F.2d 1004, 1011 (6th Cir. 1991), we held that courts have discretion in assessing costs against an unsuccessful prisoner who prosecuted his or her case in forma pauperis. Further, we noted that the courts were required to make a determination of the prisoner's capacity to pay the costs assessed. Id. at 1013-14. However, the statute has superseded Weaver. When judgment is entered against a prisoner and costs against the prisoner are assessed, 1915(f)(2)(A) now requires that the prisoner pay the costs either in full, or in accordance with the payment process set forth in Section(s) 1915(b)(2). See 28 U.S.C.A. Section(s) 1915(f)(2)(B). The prisoner's ability to pay the costs is no longer an issue. Section 1915(f)(2)(B) mistakenly refers to Section(s) 1915(a)(2) as the authoritative subsection for the payment process. However, Section(s) 1915(a)(2) does not contain a payment procedure. The payment process is located in Section(s) 1915(b)(2).
[65] The Prison Litigation Reform Act also superseded the procedures set forth in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). In Tingler, we stated that a district court may not sua sponte dismiss a plaintiff's suit unless the court first gives the plaintiff the opportunity to amend or correct the deficiencies in the complaint. Id. at 1111-12. Under Section(s) 1915(e)(2), a court is required to dismiss a case when the action satisfies Section(s) 1915(e)(2)(A) or Section(s) 1915(e)(2)(B). The courts have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal. If a complaint falls within the requirements of Section(s) 1915(e)(2) when filed, then the district court must sua sponte dismiss the complaint. Section 1915A also provides for sua sponte dismissals in cases brought by inmates.
[66] IX. Released Prisoner
[67] As to the issue of released prisoners, the Second Circuit stated in McGann v. Commissioner, Soc. Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996):
[68] Our initial question is whether the PLRA requirements, applicable to a person who files an appeal (or a complaint) while a prisoner, continue to apply after the person has been released from confinement. Section 804(a)(3) of the PLRA states that "if 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." 28 U.S.C. Section(s) 1915(b)(1) (as amended). Section 804(a)(3) also specifies that the payments are to be made in installments: the initial payment is 20 percent of the greater of the average monthly deposits in the prisoner's account or the average balance in the account for the six months preceding the filing of a complaint or notice of appeal; subsequent payments are 20 percent of the preceding month's income credited to the prisoner's account in each month that the account exceeded $10. Id. Section(s) 1915(b)(1), (2) (as amended).
[69] These provisions create a facial inconsistency as applied to a released prisoner. On the one hand, the statute broadly states that a prisoner who files an appeal "shall be required" to pay filing fees, and McGann was a prisoner when he filed his appeal. On the other hand, the amounts required to be paid are to be calculated as percentages of the balances of, or deposits into, the prisoner's prison account and are to be debited from that account, and now that McGann is no longer a prisoner, there is no prison account from which to calculate and debit the required payments. Thus, a literal reading of all provisions of the PLRA, as applied to released prisoners, is not possible.
[70] There are two ways this facial inconsistency could be resolved. The PLRA could be construed to mean that once a prisoner files a complaint or appeal, he becomes liable for the full amount of filing fees, and, if released, must then pay the entire remaining amount of those fees or have his complaint or appeal dismissed.
[71] Alternatively, the PLRA could be construed to mean that the required partial fee payments are to be made only while the prisoner remains in prison, and that, upon his release, his obligation to pay fees is to be determined, like any non-prisoner, solely by whether he qualifies for i.f.p. status.
[72] We think that the second construction better conforms to the overall structure of the PLRA. Though Congress specified that a prisoner "shall" pay the full amount of filing fees, the detailed mechanism it created for implementing this obligation by debiting prison accounts demonstrates that Congress expected the new payment requirement to apply to a prisoner who remains incarcerated. Indeed, if the payment obligation continued after release, the released prisoner, lacking a prison account from which partial payments could be debited, would have to pay the entire balance of the fee in a single payment, a result that would be more onerous than that imposed on those who remain incarcerated. It is not likely that Congress intended such a result. A released prisoner may litigate without further prepayment of fees upon satisfying the poverty affidavit requirement applicable to all non-prisoners.
[73] The Second Circuit's analysis provides an efficient resolution to this procedural issue. Therefore, a prisoner is obligated to pay assessed fees and costs only while he or she remains incarcerated. After release, the obligation to pay the remainder of the fees is to be determined solely on the question of whether the released individual qualifies for pauper status. The decision of whether pauper status is available to a released prisoner will be made by the district court.
[74] Although not obligated to do so, prison officials should notify the federal district courts of the release of an inmate who has a financial obligation to the federal courts. This information will assist the courts in the collection of outstanding fees and costs.
[75] X. District Court Accounts
[76] Congress has not provided a mechanism to close inactive prisoner accounts in the district courts. It is very possible that a prisoner may not have any funds during his or her entire term of incarceration. Thus, the clerk of the district court may have an open account for a prisoner for more than half a century without receiving any funds from prison authorities. Although sympathetic to the concerns of the clerks of the district courts, until Congress creates a statute of limitations on the collections of such debts, the clerks of the district courts will be obligated to keep hundreds of accounts open for decades to come.
[77] This order shall apply to all complaints and notices of appeals filed on or after March 1, 1997.
[78] Boyce F. Martin, Jr., Chief Judge
[45] If a prisoner wishes to proceed in forma pauperis on appeal, the prisoner must file in the district court, with the notice of appeal, a motion for leave to proceed in forma pauperis, a certified copy of a prison trust account statement, and Form 4 from the Appendix of Forms found in the Federal Rules of Appellate Procedure, or an affidavit which contains the same detailed information found in Form 4. Unlike the former concept of pauper status, an individual or prisoner granted pauper status before the district court is not automatically entitled to pauper status on appeal. See Floyd, 1997 WL 22636, at *3-5; Jackson v. Stinnett, 102 F.3d 132, 134-36 (5th Cir. 1996) (noting that Prison Litigation Reform Act has superseded parts of Fed. R. App. P. 24(a)). The statute requires that a prisoner seeking pauper status on appeal must file an affidavit of indigency and a certified copy of the prison trust account statement. 28 U.S.C.A. Section(s) 1915(a)(2), 1915(b)(1).
[46] B. Failure To File Required Documents
[47] Should the prisoner fail to file the affidavit of indigency or the trust account statement, the district court shall notify the prisoner of the deficiency. The district court shall inform the prisoner that should the prisoner not file the required documents within thirty (30) days, the court of appeals may dismiss the appeal for want of prosecution under Fed. R. App. P. 3(a) and in which case the district court will assess the entire filing fee. If dismissed under these circumstances, the appeal will not be reinstated despite the payment of the full filing fee or subsequent correction of the deficiency.
[48] The prisoner may request from the district court an extension of time to pay the filing fee or seek pauper status. The motion must be filed within thirty (30) days of the district court's deficiency order or the extension motion will not be granted unless the prisoner makes an affirmative showing that he or she did not receive the deficiency order within the thirty (30) days. If such a showing sets forth the date the prisoner received the deficiency order and is made in a notarized statement or a declaration complying with 28 U.S.C. Section(s) 1746, then the district court may, in its discretion, grant an additional thirty (30) days from the date of the filing of the extension order to allow the prisoner to correct the deficiency. The extension motion will be deemed filed once the motion is given to the prison authorities for mailing and the prisoner has satisfied the verification requirements of Fed. R. App. P. 25(a)(2)(C). See also Houston, 487 U.S. at 270. The clerk of the court of appeals shall continue to monitor the fee status of each appeal. Should the prisoner fail to comply with the district court's deficiency order, the clerk of the court of appeals shall dismiss the case for want of prosecution and the district court will assess the entire filing fee, which is to be made payable to the clerk of the district court. Once dismissed under these procedures, the appeal will not be reinstated despite the payment of the full filing fee or subsequent correction of the deficiency.
[49] C. All Forms Filed And Good Faith Certification
[50] The statute states that a district court must determine in writing whether a request to appeal in forma pauperis is taken in good faith. 28 U.S.C.A. Section(s) 1915(a)(3); see also Floyd, 1997 WL 22636, at *4. In cases brought by prisoners, such a certification is not required. Section 1915(a)(3) is modified by the provisions of Section(s) 1915(b)(1) (the section begins "[n]otwithstanding subsection (a)"). See also 28 U.S.C.A. Section(s) 1915(a)(1) ("[s]ubject to subsection (b)"). For a prisoner, the question of whether the appeal is taken in good faith is irrelevant. Under Section(s) 1915(b)(1), the prisoner must pay the required filing fees regardless of the merits of the appeal. Therefore, in prisoner cases, district courts are not required to make a good faith certification under Section(s) 1915(a)(3).
[51] The statute, however, creates a different procedure for non-prisoners. The statute states that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith." 28 U.S.C. Section(s) 1915(a)(3). Courts are required to give plain meaning to the language of the statute. United States v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994). Thus, if the district court concludes that the appeal is not taken in good faith, the individual must pay the entire filing fee and may not proceed on appeal as a pauper. Floyd, 1997 WL 22636, at *4-5.
[52] There is a conflict between the statute and Fed. R. App. P. 24(a). Id. at *3-4. Rule 24(a) provides in part:
[53] If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit filed in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the district court, and by a copy of the statement of reasons given by the district court for its action.
[54] Under Section(s) 1915(a)(3), once the district court certifies that an appeal is not taken in good faith, the non-prisoner cannot seek an appeal in forma pauperis. Furthermore, the non-prisoner cannot seek an assessment under Section(s) 1915(b)(1) as this section is strictly limited to prisoners. As Section(s) 1915(a)(3), which does not permit an appeal to proceed in forma pauperis if the appeal is not taken in good faith, conflicts with Rule 24(a), the statute supersedes the rule and, therefore, the statute controls. Floyd, 1997 WL 22636, at *3-4; Jackson, 102 F.3d at 136.
[55] D. Assessment Of Fees On Appeal By District Court
[56] The statute permits any United States court to make the financial assessment for the commencement of an appeal. See 28 U.S.C.A. Section(s) 1915(a)(1). As the district court is best suited to control the assessment process, the district court should conduct the financial assessment when the prisoner seeks pauper status on appeal.
[57] Because the date the notice of appeal is filed with the district court controls the date of assessment under Section(s) 1915(b)(1); expediency requires that the district court issue the order. If the financial assessment order was delayed until the case was transferred and docketed with the court of appeals, several weeks could pass before the court of appeals could order the financial assessment. This lapse of time would allow prisoners to drain their trust accounts to avoid payment of their filing fees.
[58] In issuing the assessment order, the district court may use the same order form which is located in Section III if the prisoner does not have sufficient funds to pay the full fees. However, the current docketing and filing fees for the court of appeals total one hundred and five dollars ($105), rather than the one hundred and fifty dollars ($150) required to file a case in the district court. Under this order and our decision in Floyd, motions for pauper status before the court of the appeals no longer exist and will not be entertained by this court. These motions shall now be processed exclusively by the district courts. This order does not, however, impair an individual's ability to request records, transcripts, or counsel before this court under Section(s) 1915(c) and Section(s) 1915(e)(1).
[59] After the district court advises the court of appeals that the initial partial filing fee under Section(s) 1915(b)(1) has been assessed, the appeal may continue. If the district court concludes that the prisoner satisfies 1915(b)(4), the prisoner may proceed with the appeal without immediate payment of the initial partial filing fee. However, the statute does not relieve the prisoner from paying the required fees when funds become available in the future. Thus, the district court still must impose a fee assessment under Section(s) 1915(b)(1), and the prisoner, when he or she receives funds, must still pay the initial partial filing fee, even if the trust account contains less than ten dollars ($10). An appeal may not be dismissed when the payment of an assessment has been delayed by prison officials. A prisoner cannot be penalized when prison officials fail to promptly pay an assessment.
[60] VII. Multiple Prisoners As Parties
[61] The statute does not specify how fees are to be assessed when multiple prisoners constitute the plaintiffs or appellants. Because each prisoner chose to join in the prosecution of the case, each prisoner should be proportionally liable for any fees and costs that may be assessed. Thus, any fees and costs that the district court or the court of appeals may impose shall be equally divided among all the prisoners. This procedure also will permit easier accounting for the district courts and prison officials.
[62] In cases involving class actions, the district courts are not to assess fees and costs to each member of the class. As a class action certification is normally made long after the complaint is filed, the responsibility to pay the required fees and costs shall rest with the prisoner or prisoners signing the complaint. In class actions on appeal, the prisoner or prisoners signing the notice of appeal shall be obligated to pay all appellate fees and costs.
[63] VIII. Weaver And Tingler
[64] In Weaver v. Toombs, 948 F.2d 1004, 1011 (6th Cir. 1991), we held that courts have discretion in assessing costs against an unsuccessful prisoner who prosecuted his or her case in forma pauperis. Further, we noted that the courts were required to make a determination of the prisoner's capacity to pay the costs assessed. Id. at 1013-14. However, the statute has superseded Weaver. When judgment is entered against a prisoner and costs against the prisoner are assessed, 1915(f)(2)(A) now requires that the prisoner pay the costs either in full, or in accordance with the payment process set forth in Section(s) 1915(b)(2). See 28 U.S.C.A. Section(s) 1915(f)(2)(B). The prisoner's ability to pay the costs is no longer an issue. Section 1915(f)(2)(B) mistakenly refers to Section(s) 1915(a)(2) as the authoritative subsection for the payment process. However, Section(s) 1915(a)(2) does not contain a payment procedure. The payment process is located in Section(s) 1915(b)(2).
[65] The Prison Litigation Reform Act also superseded the procedures set forth in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). In Tingler, we stated that a district court may not sua sponte dismiss a plaintiff's suit unless the court first gives the plaintiff the opportunity to amend or correct the deficiencies in the complaint. Id. at 1111-12. Under Section(s) 1915(e)(2), a court is required to dismiss a case when the action satisfies Section(s) 1915(e)(2)(A) or Section(s) 1915(e)(2)(B). The courts have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal. If a complaint falls within the requirements of Section(s) 1915(e)(2) when filed, then the district court must sua sponte dismiss the complaint. Section 1915A also provides for sua sponte dismissals in cases brought by inmates.
[66] IX. Released Prisoner
[67] As to the issue of released prisoners, the Second Circuit stated in McGann v. Commissioner, Soc. Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996):
[68] Our initial question is whether the PLRA requirements, applicable to a person who files an appeal (or a complaint) while a prisoner, continue to apply after the person has been released from confinement. Section 804(a)(3) of the PLRA states that "if 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." 28 U.S.C. Section(s) 1915(b)(1) (as amended). Section 804(a)(3) also specifies that the payments are to be made in installments: the initial payment is 20 percent of the greater of the average monthly deposits in the prisoner's account or the average balance in the account for the six months preceding the filing of a complaint or notice of appeal; subsequent payments are 20 percent of the preceding month's income credited to the prisoner's account in each month that the account exceeded $10. Id. Section(s) 1915(b)(1), (2) (as amended).
[69] These provisions create a facial inconsistency as applied to a released prisoner. On the one hand, the statute broadly states that a prisoner who files an appeal "shall be required" to pay filing fees, and McGann was a prisoner when he filed his appeal. On the other hand, the amounts required to be paid are to be calculated as percentages of the balances of, or deposits into, the prisoner's prison account and are to be debited from that account, and now that McGann is no longer a prisoner, there is no prison account from which to calculate and debit the required payments. Thus, a literal reading of all provisions of the PLRA, as applied to released prisoners, is not possible.
[70] There are two ways this facial inconsistency could be resolved. The PLRA could be construed to mean that once a prisoner files a complaint or appeal, he becomes liable for the full amount of filing fees, and, if released, must then pay the entire remaining amount of those fees or have his complaint or appeal dismissed.
[71] Alternatively, the PLRA could be construed to mean that the required partial fee payments are to be made only while the prisoner remains in prison, and that, upon his release, his obligation to pay fees is to be determined, like any non-prisoner, solely by whether he qualifies for i.f.p. status.
[72] We think that the second construction better conforms to the overall structure of the PLRA. Though Congress specified that a prisoner "shall" pay the full amount of filing fees, the detailed mechanism it created for implementing this obligation by debiting prison accounts demonstrates that Congress expected the new payment requirement to apply to a prisoner who remains incarcerated. Indeed, if the payment obligation continued after release, the released prisoner, lacking a prison account from which partial payments could be debited, would have to pay the entire balance of the fee in a single payment, a result that would be more onerous than that imposed on those who remain incarcerated. It is not likely that Congress intended such a result. A released prisoner may litigate without further prepayment of fees upon satisfying the poverty affidavit requirement applicable to all non-prisoners.
[73] The Second Circuit's analysis provides an efficient resolution to this procedural issue. Therefore, a prisoner is obligated to pay assessed fees and costs only while he or she remains incarcerated. After release, the obligation to pay the remainder of the fees is to be determined solely on the question of whether the released individual qualifies for pauper status. The decision of whether pauper status is available to a released prisoner will be made by the district court.
[74] Although not obligated to do so, prison officials should notify the federal district courts of the release of an inmate who has a financial obligation to the federal courts. This information will assist the courts in the collection of outstanding fees and costs.
[75] X. District Court Accounts
[76] Congress has not provided a mechanism to close inactive prisoner accounts in the district courts. It is very possible that a prisoner may not have any funds during his or her entire term of incarceration. Thus, the clerk of the district court may have an open account for a prisoner for more than half a century without receiving any funds from prison authorities. Although sympathetic to the concerns of the clerks of the district courts, until Congress creates a statute of limitations on the collections of such debts, the clerks of the district courts will be obligated to keep hundreds of accounts open for decades to come.
[77] This order shall apply to all complaints and notices of appeals filed on or after March 1, 1997.
[78] Boyce F. Martin, Jr., Chief Judge