Evelina J. Norwinski, Assistant Federal Public Defender,
appointed by the court as amicus curiae, argued the cause on
the side of petitioner, with whom A.J. Kramer, Federal Public
Defender, was on the brief. Peter C. Smith, appearing pro
se, also filed briefs.
William D. Weinreb, Assistant U.S. Attorney, argued the
cause for respondent, with whom Eric H. Holder, Jr., U.S.
Attorney, John R. Fisher and Roy W. McLeese, III, Assistant
U.S. Attorneys, were on the brief.
Before: Randolph and Rogers, Circuit Judges and
Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge : In 1996, Congress passed the Pris-
on Litigation Reform Act ("PLRA") as Title VIII of the
Omnibus Consolidated Recessions and Appropriations Act of
1996, Pub. L. 104-134, 110 Stat. 1321 (1996). 1 On November
21, 1996, shortly before his release from prison, petitioner
Peter C. Smith lodged with this court a pleading styled as a
petition for a writ of prohibition, naming as respondent the
United States Department of Justice, but also seeking relief
from the United States Parole Commission. In his petition
Smith contends that the Commission's files erroneously fail to
reflect that the Commission ceased to have authority over
him on November 1, 1992; the Commission's calculation of his
parole date violated § 235(b) of the Sentencing Reform Act of
1984, Pub. L. No. 98-473, 98 Stat. 1987, 2032 (1984)(codified
as amended at 18 U.S.C. § 3551 (1985 & Supp. 1996)); the
Federal Bureau of Prisons ignored its rules in calculating the
length of his sentence; the search of his residence violated his
Fourth Amendment rights; and his trial attorney was consti-
tutionally ineffective. Citing the Privacy Act of 1974, 5
U.S.C. § 552a (1996), Smith seeks an order directing the
Commission to correct his parole files, as well as an order
awarding him compensatory and punitive damages. The
petition was duly filed by the Clerk of the Court. Smith also
filed a motion to proceed in forma pauperis.
The court sua sponte deferred ruling on Smith's motion for
leave to proceed in forma pauperis and appointed the Federal
Public Defender as amicus curiae to present arguments in
Smith's favor. The court ordered the parties to address
three issues: first, whether the filing fee provisions of the
PLRA apply to habeas corpus proceedings; second, the im-
pact, if any, of Smith's release from prison on the applicability
of the PLRA's filing fee requirements; and third, whether
the petition is moot as a result of Smith's release from prison.
We hold that the PLRA is applicable to Smith's petition, that
his release from prison does not relieve him of past due
for habeas corpus relief is moot as a result of his release from
prison, his claims for correction of Commission records, a
declaration that as of November 1, 1992, he was no longer
subject to Commission supervision, and for damages are not
moot. Therefore, because Smith's petition may not properly
be filed until his PLRA obligations are met, we defer any
decision regarding his petition and motion until he complies
with the PLRA filing fee requirements. See Martin v.
United States, 96 F.3d 853, 856 (7th Cir. 1996). We will only
address the first two issues because the answer to the third is
too obvious to warrant discussion.
Until 1996, the in forma pauperis statute, 28 U.S.C.
§ 1915(a), provided that any person without means could
commence "any suit, action, or proceeding, civil or criminal,"
without prepaying the requisite filing fees. In enacting the
PLRA in 1996, Congress "endeavor[ed] to reduce frivolous
prisoner litigation by making all prisoners seeking to bring
lawsuits or appeals feel the deterrent effect created by liabili-
ty for filing fees." Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir.
1996); s ee also Naddi v. Hill, 106 F.3d 275, 277 (9th Cir.
1997); United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.
1996); Martin v. United States, 96 F.3d 853, 856 (7th Cir.
1996). Thus, "Congress enacted the PLRA primarily to
curtail claims brought by prisoners under 42 U.S.C. § 1983
and the Federal Torts Claims Act, most of which concern
prison conditions and many of which are routinely dismissed
as legally frivolous." Santana v. United States, 98 F.3d 752,
755 (3d Cir. 1996) (citing legislative history); see also Reyes v.
Keane, 90 F.3d 676, 678 (2d Cir. 1996).
Section 804 of the PLRA amends the in forma pauperis
statute to provide 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.
§ 1915(b)(1). 2 Section 804 also establishes a prepayment
available in a prisoner's account and subsequent installments
based on fixed percentages of the amount in the prisoner's
account when the full fee is not initially paid. Id.
§ 1915(b)(2). 3 Section 1915(b)(4) provides, however, that "[i]n
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." Thus, subject to § 1915(b)(4),
prepayment of the filing fee is required in every case in which
a prisoner proceeding in forma pauperis brings a "civil ac-
tion."
Although Congress did not define the term "civil action" for
purposes of the PLRA, we conclude that it includes a petition
for a writ of prohibition that, like Smith's, includes underlying
claims that are civil in nature. While Smith and amicus
contend that Smith's petition should be treated identically to
a habeas corpus petition, we find no basis to conclude that
because certain claims in his petition arise out of criminal
proceedings he may evade the PLRA requirements applicable
to his civil claims. The circuits addressing the applicability of
the PLRA filing fee requirements to habeas corpus petitions
have uniformly concluded that Congress did not intend the
Two days after enacting the PLRA, Congress passed the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1997), which imposed compre-
hensive measures for deterring frivolous habeas petitions.
As the Seventh Circuit explained in Martin :
since the simultaneously enacted antiterrorism act deals
comprehensively with habeas corpus, since habeas corpus
is more accurately regarded as being sui generis ...
than as being either civil or criminal, and since postcon-
viction relief and prisoner civil rights relief are analyt-
ically very different and the [PLRA] is addressed to the
latter, we agree ... that the Act is inapplicable to habeas
corpus.
96 F.3d at 855. Every other circuit that has addressed the
question whether the PLRA applies to petitions for habeas
corpus has concluded that it does not, essentially for the same
reasons articulated in Martin. See Naddi, 106 F.3d at 277;
Cole, 101 F.3d at 1077; Santana, 98 F.2d at 754; Reyes, 90
F.3d at 678.
By contrast, three circuits have held that petitions for
mandamus or prohibition that are predicated on underlying
civil claims fall within the range of actions that Congress
sought to subject to the PLRA filing fee requirements. See
Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996); Martin, 96
F.3d at 854-55; Green v. Nottingham, 90 F.3d 415, 418 (10th
Cir. 1996); In re Nagy, 89 F.3d 115, 116 (2d Cir. 1996). The
rationale of these decisions is that it would defeat the purpose
of the PLRA if a prisoner could evade its requirements
simply by dressing up an ordinary civil action as a petition for
mandamus or prohibition or by joining it with a petition for
habeas corpus. See Green, 90 F.3d at 418. We agree.
Therefore, we hold that because Smith's petition includes
compensatory and punitive damage claims under the Privacy
Act, 5 U.S.C. § 552a, that are civil in nature, and was filed
after the effective date of the PLRA while he was still in
prison, the fee requirements of the PLRA apply. 4 See Reyes,90 F.3d at 678.
II.
The question remains how the PLRA's procedures for the
the payment of filing fees apply in the case of a prisoner who
is released before the filing and docket fees have been fully
paid.
Accompanying his petition for leave to proceed in forma
pauperis was an affidavit in which Smith stated that he had
no income or assets, earned $6.00 per month in prison wages,
had received "[g]ifts in varying amounts of under $100.00,"
and had less than $1.00 in savings as of May 15, 1996. 5 That
fee does not, however, relieve him of his obligation to comply
with past due procedural and payment obligations under the
PLRA. If a litigant is a prisoner on the day he files a civil
action, the PLRA applies. See Robbins v. Switzer, 104 F.3d
895, 897 (7th Cir. 1997); McGann v. Commissioner, Social
Sec. Admin., 96 F.3d 28, 29-30 (2d Cir. 1996). Although
Smith's obligation to pay the filing fee arose at the time he
sought to file his petition with this court, 28 U.S.C.
§ 1915(a)(1), (b); see McGann, 96 F.3d at 29-30, the record
does not indicate that he submitted the prison account state-
ments required by § 1915(a)(2), 6 paid the initial partial filing
fee required by § 1915(b)(1), or made any of the monthly
payments required by § 1915(b)(2). Under the PLRA, fail-
ure to comply with any of these requirements may result in
dismissal of a prisoner's action. See Ayo v. Bathey, 106 F.3d
98, 101 (5th Cir. 1997).
Smith and amicus contend that because the PLRA applies
exclusively to prisoners, although Smith failed to submit the
required forms or to make the required payments while he
was in prison, now that he has been released these obligations
are no longer binding upon him. We find nothing to indicate
that Congress intended to create a loophole through which
prisoners could evade their PLRA fee obligations while in
prison and be permanently relieved of these duties upon their
release. Because Smith was a prisoner when he filed his
petition, he is obligated to fulfil the applicable PLRA proce-
dural requirements and pay the amounts due under the
statute, notwithstanding the fact of his release. As the
language of § 1915(b)(1), an individual's "current status does
not alter the fact that he was a prisoner when he filed the
appeals." 104 F.3d at 897. This follows from recognition
that in forma pauperis status defers, but does not permanent-
ly excuse, the payment of filing fees. As the Seventh Circuit
concluded in Robbins, "[s]ection 1915(b)(1) says that prisoners
are liable for the full fees, but so is every other person who
proceeds in forma pauperis; all § 1915(a) does for any liti-
gant is excuse the pre-payment of fees. Unsuccessful liti-
gants are liable for fees and costs and must pay when they
are able." Id. at 898. To require Smith to pay amounts that,
according to the PLRA formula, he was capable of paying at
the time they were assessed is thus not inconsistent with
extending in forma pauperis status to him. Because they
arose while he was in prison and subject to the PLRA,
Smith's past due, unmet obligations cannot be excused as a
result of his release from prison. Id. at 897-88. But see
McGann, 96 F.3d at 30.
Nor, as Smith and amicus contend, does § 1915(b)(4) com-
pel a contrary result. While this provision excuses prepay-
ment of the filing fee for prisoners who lack assets or means
to pay at the time an action is filed, it does not excuse such
prisoners from compliance with the PLRA's procedural re-
quirements, or from the obligation to make installment pay-
ments using any funds that come into their prison accounts
subsequent to filing. Nothing in § 1915(b)(4) overrides the
court's obligation to "assess and, when funds exist, collect,"
§ 1915(b)(1), applicable fees from petitioners who, though
lacking assets at the time of filing, subsequently gain means,
either in their prison account or after release. Section
1915(b)(4) does not authorize prisoners to evade the statute
by withholding required payments, and win permanent re-
prieve from their obligations by pleading poverty upon re-
lease. See Robbins, 104 F.3d at 897-99. Instead, "when a
prisoner does not adhere to the statutory system, a court may
dismiss the appeal without regard to his [present] ability (or
inability) to pay." Id. at 897.
Because this circuit has not previously addressed the appli-
cability of the PLRA to civil pleadings where the petitioner is
no longer in prison, and because Smith filed his petition
directly in this court rather than the district court, it is
appropriate to afford Smith time to comply with the filing
requirements of the PLRA. See id. at 898-99. Therefore,
before the court will consider his petition, Smith must demon-
strate that he did not have money in his prison account to pay
the PLRA fee at the time he filed his petition. Within thirty
days of entry of the mandate of this decision, see Fed. R. App.
P. 41(a), Smith shall file a statement or an affidavit, as
provided by Form 4 in the Appendix to the Federal Rules of
Appellate Procedure, showing the balances in his prison
account as of November 21, 1996, the date he filed his
petition, as well as his income for six months prior to that
date, and for the time between that date and December 17,
1996, when he was released from prison. If Smith had the
financial means to pay any part of the PLRA fees, he must
pay such amounts that, according to the prison account
statements, he could have paid when he filed his petition in
this court, and in subsequent installments. If Smith demon-
strates that, from the time he filed his petition onward, he
had no money in his prison account to pay the filing fees, the
court will proceed to address his petition and he may proceed
in forma pauperis. See 28 U.S.C. § 1915(b)(4); Robbins, 104
F.3d at 897; Martin, 96 F.3d at 856. If he does not file the
requisite materials with the court and pay any amounts due,
his petition may be dismissed. See Robbins, 104 F.3d at 899.
At such time as Smith submits the required prison account
statements within thirty days, his liability for the PLRA fees
that should have been paid prior to his release from prison
under § 1915(b) will be calculated, and Smith must pay that
amount as provided by further order of the court. Id.
However, Smith may rely on in forma pauperis status for the
balance of the filing fee, id. , as his current poverty does not
pose a bar to relief, except with respect to past due amounts
under the PLRA that were assessed based upon a calculation
that Smith had means to pay them when due.
The PLRA applies to filings on or after April 26, 1996, the
date the President signed the legislation. See Wright v. Morris,
111 F.3d 414, 417 (6th Cir. 1997).
Section § 1915(b)(1) provides:
The court shall assess and, when funds exist, collect, as a
partial payment of any court fees required by law, an initial
partial filing fee of 20 percent of the greater of_
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for
the 6-month period immediately preceding the filing of the
complaint or notice of appeal.
Footnote: 3Section 1915(b)(2) provides:
After payment of the initial partial filing fee, the prisoner shall
be required to make monthly payments of 20 percent of the
preceding month's income credited to the prisoner's account.
The agency having custody of the prisoner shall forward pay-
ments from the prisoner's account to the clerk of the court each
time the amount in the account exceeds $10 until the filing fees
are paid.
Footnote: 4Several months after filing his petition in this court, Smith
moved to strike his request for damages. We deny the motion.
Although Smith submitted his "notice of [withdrawal] of claim for
damages" four days before the government submitted its brief, the
motion was received by the court the same day that the govern-
ment's brief was filed. Because the government based many of its
PLRA contentions on the existence of Smith's damages claims, it
would prejudice the government to permit withdrawal of that claim
after the government's brief was filed. See Phillips USA, Inc. v.
Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996); Conafay v.
Wyeth Laboratories, 841 F.2d 417, 419 (D.C. Cir. 1988) (per cu-
riam). The only basis Smith provides for withdrawing his damages
claim is his desire to re-file that claim in another forum. To allow
such relief at this late date would be contrary to the purposes of the
PLRA and congressional intent. See Martin, 96 F.3d at 856;
Reyes, 90 F.3d at 678.
Footnote: 5Based on the standard in § 1915(a)(1), Smith would appear to
qualify for in forma pauperis status. Section 1915(a)(1) provides, in
pertinent part:
Subject to subsection (b), any court of the United States may
authorize the commencement, prosecution or defense of any
suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a person
who submits an affidavit that includes a statement of all assets
such prisoner possesses that the person in unable to pay such
fees or give security therefor.
Footnote: 6Section 1915(a)(2) provides, in relevant part:
A prisoner seeking to bring a civil action or appeal a judgment
in a civil action or proceeding without prepayment of fees or
security therefor, in addition to filing the affidavit filed under
paragraph (1), shall submit a certified copy of the trust fund
account statement (or institutional equivalent) for the prisoner
for the 6-month period immediately preceding the filing of the
complaint or notice of appeal, obtained form the appropriate
official of each prison at which the prisoner is or was confined.