District Judge of the Western District of Louisiana, sitting by designation. REVISED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40908

ROBERT L. BAUGH,

Plaintiff-Appellant,

versus

JOE MAX TAYLOR; ERIC NEVELOW;

PERRY EVANS,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

June 30, 1997

Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and DOHERTY, * District Judge.

POLITZ, Chief Judge:

Robert Baugh, a Texas prisoner, appeals the dismissal of his 42 U.S.C.

§ 1983 claims for various alleged unconstitutional conditions of confinement. His

appeal, like so many recent prisoner cases, raises an issue of first impression underAt some point, the district court dismissed the other plaintiffs’ cla ims; they are not

parties on appeal.

2 the Prison Litigation Reform Act (PLRA). For the reasons assigned we remand to

the district court in order that it may supple ment its prior certification that the

appeal was not taken in good faith, or recall and revise same, or otherwise proceed

herein as it deems appropriate.

Background

Baugh and several other Texas state prisoners were inmates in the Galveston

County Jail when they sued local jail officials for alleged unconstitutional failure

to protect them from attacks by fellow inmates; deliberate indifference to serious

medical needs; unanswered griev a nces; and other alleged unconstitutional

conditions of confinement. The district court granted Baugh leave to proceed i n

forma pauperis (IFP). 1

Thereafter, the district co urt referred the case to a magistrate judge who

directed Baugh to respond to interrogatories designed to elicit detailed information

a bout his claims. After receiving Baugh’s answers, the magistrate judge

recommended dismissal of his claims as frivolous. The district court agreed and

dismissed Baugh’s case with prejudice. Baugh filed a timely notice of appeal and

a motion for leave to proceed on appeal IFP. The district court denied the motion102 F.3d 132 (5th Cir. 1996).

105 F.3d 972 (5th Cir. 1997).

3 to proceed IFP and certified that the appeal was not taken in good faith, citing

Fed .R.App.P. 24(a). No reasons beyond those contained in the dismissal ruling

were given.

In response to Baugh’s motion to proceed IFP in this court we ordered that

his appeal be held in abeyance either pending payment of the filing fee or the filing

of an affidavit to proceed IFP that complied with the PLRA. Baugh has complied

with that order. We must now determine whether he is entitled to proceed IFP on

appeal, and more specifically, the proper application of Fed.R.App.P. 24(a) herein

in light of the PLRA.

Analysis

Baugh maintains that under Rule 24 th e district court was required to give

written reaso ns for certifying that his appeal was not taken in good faith. Two

re cent decisions, J ackson v. Stinnett 2 and Strickland v. Rankin County

Correctional Facility

, 3 have held that 28 U.S.C. § 1915, which the PLRA

extensively amended, repeals portions of Rule 24.

Our colleagues in the Sixth Circuit addressed the specific question now105 F.3d 274 (6th Cir. 1997).

In re Prison Litig.Reform Act , 105 F.3d 1131 (6th Cir. 1997).

No. 97-1165, 1997 WL 309600 (6th Cir. June 11, 1997).

4 before us in Flo yd v. United Postal Service

. 4 Chief Judge Martin’s collation of

PLRA developments explicates that decision, 5 as does his more recent opinion in

McGore v. Wrigglesworth

. 6

A close read of Floyd reflects that it reaches two conclusions: (1) conditional

phrases in section 1915(a) and (b) create a prisoner/nonprisoner dichotomy between

the various parts of subsection (a); an d (2) subsection (a)(3), which it concludes

applies only to nonprisoners, poses an absolu te bar to IFP appeals and hence

impliedly repeals part of Rule 24(a). We cannot accept either conclusion.

A. A Prisoner/Nonprisoner Dichotomy in 28 U.S.C. § 1915(a)

The linchpin of the first of the foregoing conclusion s is that the phrases

“Notwithstanding subsection (a)” and “Subject to subsection (b)” found in section

1915 make subsections (a)(3) and (b)(1) mutually exclusive. We are not so

persuaded for several reasons.

First, sectio n 1915(a)(1) provides that “any court . . . may authorize the

commencement, prosecution or defense of any suit,

. . . or appeal therein, without

the prepayment of fees or security therefor.” We hold that the phrase “Subject toThe statute is ambiguous as to whether only civil appeals are covered or both civil and

criminal appeals are. Compare §§ 1915(a)(2) and (b)(1) with § 1915(b)(4).

28 U.S.C. § 1915(b)(1).

Whether an IFP appellant can challenge the trial court’s determination that his appeal

was not taken in good faith will be addressed below.

5 subsect ion (b)” that precedes this authorization was meant merely to clarify that

prisoners initiating a civil suit or appeal 7 are required to pay the “full amount of a

filing fee.” 8 Reciprocally, subsection (b)(1)’s phrase, “Notwithstanding subsection

(a),” forecloses the possibility that prisoners could seize upon subsection (a)(1)’s

language authorizing the commencement of suits and appeals “without the

prepayment of fees.” These two phrases do nothing more.

Second, we find no mandated conflict between (a)(3) and (b)(1). Subsection

(a)(3) states that an app eal may not be taken IFP if the district court certifies in

writing that the appeal is not taken in good faith. That a prisoner in such a setting

is required to pay the full filing fee, regardless of his IFP status, does not mean that

(a)(3)’s sanction has no application to prisoner litigation. Once the district court

certifies that an IFP appeal is not taken in good faith, prisoners, like nonprisoners,

cannot appeal 9 unless prepared to pay the full filing fee, deposits, and other costs.

The assessment procedures in the reconstituted section 1915(b) are not applicable28 U.S.C. § 1915(b)(1).

6

to all prisoner litigation, only IFP prisoner litigation. 10 A prisoner litigant who has

been denied IFP status for appeal, or whose appeal has been certified as taken in

bad faith, must pay the full filing fee and other costs when due, without the benefit

of the accommodating assessment procedures found in section 1915(b).

Finally, we cannot accept our sister circuit colleague’ s analysis on the

interplay between s ubsections (a) and (b) of section 1915, convinced that such

frustrates the goals of the PLRA, namely the curbing of frivolous prisoner litigation

and the preservation o f our limited appellate resources. Under the F loyd model,

district courts may end a nonprisoner IFP app eal in the traditional manner, by

certifying that the appeal is not taken in good faith, but may no longer do the same

for prisoner appeals. We conclude otherwise and hold that the district courts retain

the discretion to certify under section 1915(a)(3) that IFP appeals, from prisoners

and nonprisoners alike, are not taken in good faith.

B. Whether § 1915(a)(3) Repeals Rule 24(a)

Finally, we must determine whether section 1915(a)(3) implicitly repealed

portions of Rule 24(a). Nothing in the PLRA expressly repeals Rule 24 and the

l egislative history is silent; we therefore are constrained to proceed cautio usly,Crawford Fitting Co. v. J.T. Gibbons, Inc. , 482 U.S. 437, 442 (1987).

Fed.R.App.P. 24(a).

7 noting that “[r]epeals by implication are not favored.” 11 Every effort to harmonize

the competing statutes must be made.

Two of our recent decisions have held that section 1915 impliedly repealed

portions of Rule 24. Neither case, however, controls the issue before us today. In

Jackson v. Stinnett , an IFP prisoner’s section 1983 suit, filed before the effective

date of the PLRA, was dismissed as frivolous after its effective date. The trial

cou rt did not certify that the appeal was taken in bad faith, so the prisoner,

following the letter of Rule 24, did not reapply with the court of appeals for

permission to proceed IFP. Under Rule 24(a), the prisoner, who had been permitted

to proceed IFP at trial, was allowed to “proceed without further application to the

court of appeals and without prepayment of fees or costs in ei ther court or the

giving of security therefor,” 12 the “carryover” provision. The J ackson court, noting

that the appeal was filed after the effective date of the PLRA, held that the PLRA

overruled Rule 24 to the extent that it allowed the prisoner to rely on a pre-PLRA

certification of IFP status. Rule 24's carryover provision could not apply because

the pre-PLRA IFP requirement s did not meet the heightened PLRA standards.

Jackson also held that the PLRA expressly required the payment of filing fees byJackson (citing 28 U.S.C. § 1915(b)).

Strickland

.

The rule of these two cases has since been expanded further to cover all prisoner IFP

litigation, whether or not the prisoner initially attained IFP status in the district court after

the PLRA’s effective date. See Morgan v. Haro , 112 F.3d 788 (5th Cir. 1997).

8 prisoner IFP appellants, 13 and thus that Rule 24's exemption for the payment of

such fees no longer applied.

In Strickland v. Ran kin County Correctional Facility , decided a month later,

a prisoner’s IFP appeal was pending before the effective date of the PLRA. Like

the prison er in J ackson

, Strickland arguably had carryover IFP status under

Rule 24. Expanding on Jackson , the S trickland court held that IFP appeals

docketed before the effective date of the PLRA were subject to the PLRA’s

heightened IFP standards, as well as the mandatory filing fees of section 1915(b). 14

Strickland was therefore required to reapply for IFP status and pay the appellate

filing fees and could not rely on Rule 24. 15

Unlike the Jackson and Strickland cases, the instant appeal does not involve

provisions of section 1915 that conflict with Rule 24. The perceived conflict noted

in Floyd is that section 1915(a)(3) does not permit an appeal to proceed IFP if the

appeal is not taken in good faith, whereas Rule 24(a) allow s an IFP appellant to

apply to the courts of appeals for IFP status within 30 days of such a certification.We find no hint of such intent in the legislative history of the PLRA.

Johnson v. United States , 352 U.S. 565 (1957).

9 Although we agree with the Floyd court that these provisions appear to be in

conflict, a close examina tion of the historical context of section 1915(a)(3)

persuades otherwise.

More than half a century before the PLRA, 28 U.S.C. § 1915(a) stated, as it

does today, that “[a]n appeal may not be taken in forma pauperis if the trial court

certifies in writing that it is not taken in good f aith.” Relevant provisions in

Rule 24(a) were adopte d in 1967 to spell out the procedural implementation of

28 U.S.C. § 1915. The PLRA merely moved this provision from subsection (a) of

section 1915 to subsection (a)(3). We do not view this relocation as evidence of

congressional intent to abrogate procedures in Ru le 24 that have coexisted

peacefully for three decades with the identical provision. 16

Despite this longevity, we find no dispositive ruling identifying the

procedural mechanism by which IFP appellants, whose appeals have been certified

as not taken in good faith, could challenge such a certification. As early as 1957,

the Supreme Court held that in the criminal context, “[s]uch certification is not

final in the sense that the convicted defendant is barred from showing that it was

unwarranted and that an appeal should be allowed.” 17 Subsequent cases reviewedSee

, e.g.

, Cruz v. Hauck

, 404 U.S. 59 (1971) (suggesting that even in the civil context

the constitutional right to court access and due process require an appellate court to review

de novo a trial court’s certification that an IFP appeal is not taken in good faith) (Douglas,

J., concurring); Payne v. Lynaugh

, 843 F.2d 177 (5th Cir. 1988); Jackson v. Dallas Police

Dep’t

, 811 F.2d 260 (5th Cir. 1986); Wright v. Dallas County Sheriff Dep’t

, 660 F.2d 623

(5th Cir. 1981).

But see McGore at 11 (holding that “[s]uch a challenge

. . . does not exist for a

prisoner”).

10 certification decisions in the civil context as well. 18 Absent clear congressional

intent to overrule this precedent, we inexorably must hold that the district court’s

certification that an appeal is not taken in good faith is subject to our review. 19

We must now focus on the implementing procedure. Ostensibly in response

to the Supreme Court’s mandate that c ertification decisions under section 1915

were appealable, Fed.R.App.P. 24(a), when adopted in 1967, provided that if the

trial court certified that the appeal was not taken in good faith, the would-be IFP

a ppellant could petition the court of appeals for leave to proceed IFP on appeal.

The Advisory Notes to Rule 24 explain:

The final paragraph e stablishes a subsequent motion in the court of

appeals, rather than an appeal from the order of denial or from the

certification of lack of good faith, as the proper procedure for calling

in question the correctness of the action of t he district court. The

simple and expeditious motion procedure seems clearly preferable to

an appeal. This paragraph applies only to applications for leave to

appeal in forma pauperis. The order of a district court refusing leave

to initiate an action in the district court in forma pauperis is reviewable

on appeal. See R oberts v. United States District Court

, 339 U.S. 844,See cases cited supra n.18.

11 70 S.Ct. 954, 94 L.Ed. 1326 (1950).

We are mindful that occasionally we have blurred the distinction between

motions to proceed IFP and appeals on the merits. 20 In defense of those rulings we

observe that the posture of those cases warranted such treatment. Usually, a district

court certified that an appeal was no t taken in good faith when the underlying

claims of the IFP plaintiff were entirely frivolous and had no possibility of success.

The merits of the suit were thus inextricab ly intertwined with the certification

decision. Legitimate values, such as concerns for judicial economy and prudence,

justified the melding of the decisions.

In other situations, a motion for leave to proceed IFP on appeal would b e

more ef ficient than combining it with an appeal on the merits. Examples would

include attempted appeals of interlocutory discovery orders, summary judgments,

and various other un appealable orders or rulings that are not unusual in p ro se

settings.

From this vantage point we now hold that (1) a district court may certify that

an IFP appeal is not taken in good faith under section 1915(a)(3) and Rule 24(a);

(2) if the trial court does so, it is required under Rule 24(a) to set forth in writingTo comply with Rule 24 in this regard, it often may suffice for the district court to

incorporate by reference its decision dismissing the prisoner’s complaint on the merits with

or without supplementation, as the trial court deems appropriate, to fully apprise us of the

reasons for its certification.

Upon notifi cation that the prisoner has filed a motion challenging the certification

decision, the district court shall enter an appropriate order under 28 U.S.C. § 1915(b )

assessing the initial partial filing fee and ordering payment of the remainder of the filing fee

as directed by the PLRA. After this order is entered, appellate review will commence. S ee

Morgan

.

No additional filing fees or assessments will be required for our review on the merits.

12 the reasons for its certification; 21 and (3) within the time prescribed by Rule 4, the

appellant either may pay the full filing fee and any relevant costs and proceed on

appeal for plenary review, or contest the certification decision by filing a motion

for leave to proceed IFP with the court of appeals. If the latter be done and the

appellate IFP certification is secured, the motion therefor shall be deemed to be a

ti mely notice of appeal. When the prisoner opts to challenge the certification

decision, the motion must be directed solely to the trial court’s reasons for the

certification decision. The said motion and deemed notice of appeal shall be a

filing for purposes of the PLRA and will trigger the financial screening and

assessment procedures thereof. 22

If we find error in the trial court’s certification that the appeal was not taken

in good faith, we shall order briefing on the merits of the appeal. 23 Having so ruled

we remind that if in reversing the trial court in cases where the merits are soOf course, nothing prevents the appellate court from s ua sponte dismissing the case on

the merits pursuant to 5 TH C IR

. R. 42.2 when it is apparent that an appeal would be meritless.

13 intertwined with the certification decision as to constitute the same issue, the prior

expedient practice of determining the merits of the appeal as well as the

appropriateness of IFP status will remain an available appellate disposition.

In instances in which we uphold the trial court’s determinati on that the

appeal is not taken in good faith and the prisoner persists in taking an appeal on the

merits, payment of the full appellate filing fees and costs, less what has already

been collected, must be made within 30 days or the appeal wil l be dismissed for

want of prosecution. 24

Applying the foregoing to Baugh’s appeal, and viewing the m agistrate

judge’s report and recommendations adopted by the district court as the reasons for

the certification, we cannot fully resolve the matter before us. The record is devoid

of findings on tw o issues: (1) Baugh’s claim that due to severe overcrowding

conditions and ignored grievances pertaining thereto, he contracted tuberculosis;

a nd (2) Baugh’s potential due process complaint regarding entitlement to

procedures provided in the Galveston County Jail handbook. We must, therefore,

remand to the district court for findings on these issues and, in accordance with

Morgan

, to conduct any applicable financial screening and assessment procedures14

required under the PLRA.

REMANDED for further proceedings consistent herewith.