IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40084

Summary Calendar

 

DANNY LEWIS HATCHET,

Plaintiff-Appellant,

versus

UNKNOWN NETTLES, Officer,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

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February 4, 2000

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:

Danny Lewis Hatchet, Texas prisoner # 608224, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights

action for failure to pay the initial partial filing fee required

by 28 U.S.C. § 1915(b) of the Prison Litigation Reform Act (PLRA)

and failure to indicate good cause for his failure to pay. 

Hatchet argues that the district court erred in dismissing his

action because he had a balance of only 20 cents in his inmate

trust account and did not have sufficient assets or means to pay

the partial filing fee. He argues that under 28 U.S.C.

§ 1915(b)(4), the district court should not dismiss an action
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because the prisoner has no assets or means to pay an initial

partial filing fee.

Although the assessment of the initial partial filing fee

under § 1915(b)(1) was not error, the dismissal of Hatchet’s

action without prejudice was an abuse of discretion. See Larson

v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). The district

court made no inquiry regarding whether Hatchet had complied with

the initial partial filing fee order. Prisoners have no control

over the processing of their inmate trust-fund withdrawals after

they have consented to those withdrawals, when consent is

required. We hold that it is an abuse of discretion for a

district court to dismiss an action for failure to comply with an

initial partial filing fee order without making some inquiry

regarding whether the prisoner has complied with the order by

submitting any required consent forms within the time allowed for

compliance.

The district court’s dismissal without prejudice operates as

a dismissal with prejudice because Hatchet is now barred from

refiling the action due to the expiration of the two-year

limitations period. See Long v. Simmons, 77 F.3d 878, 879-80

(5th Cir. 1996)(statute of limitations can cause a dismissal

without prejudice to operate as a dismissal with prejudice);

Owens v. Okure, 488 U.S. 235, 249-50 (1989)(the general personal

injury statute of limitations for the forum state is used for 42

U.S.C. § 1983 actions); Tex. Civ. Prac. & Rem. Code Ann.
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§ 16.003(a) (West 1998)(two-year personal injury-limitations

period in Texas). The district court also erred in dismissing

the action without considering a lesser sanction because the

dismissal operates as a dismissal with prejudice. See Long, 77

F.3d at 879-80.

In order to prevent these and other problems associated with

assessment and collection of the initial partial filing fee and

dismissal for failure to pay the initial partial filing fee, we

have decided to take this opportunity to clarify the statutory

procedures applicable to prisoners’ motions for leave to proceed

in forma pauperis (IFP) in the district courts.

A prisoner must file an IFP application containing all of

the information required by 28 U.S.C. § 1915(a)(1) and (2). In

accordance with the procedures of the district courts, a prisoner

must also complete and submit to the custodial institution any

consent or authorization forms that the custodial institution

having custody of the prisoner requires to access the prisoner’s

inmate trust account, to collect funds from the account, and to

pay those funds to the clerk of the district court. After the

prisoner files a completed IFP application, the district court

should assess an initial partial filing fee of 20 percent of the

greater of the average monthly deposits or the average monthly

balance in the prisoner’s account for the six-month period

immediately preceding the filing of the complaint. 

§ 1915(b)(1)(A) & (B); see also Morgan v. Haro, 112 F.3d 788,
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788-89 (5th Cir. 1997). The order should provide for payment of

the initial partial filing fee from the prisoner’s trust fund

account when funds are available, following receipt of any

consent forms required by the custodial institution. See

Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997); McGore v.

Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997).

The IFP order should provide that if the prisoner’s trust

fund account does not contain the full amount assessed as an

initial partial filing fee, the custodial institution shall

withdraw from the account any portion of the initial partial

filing fee available and transmit it to the clerk of the district

court. See McGore, 114 F.3d at 606. Even if the account balance

is under ten dollars, the custodial institution must still

forward payments to the district court to pay the initial partial

filing fee as the ten-dollar rule of § 1915(b)(2) is applicable

only after the initial partial filing fee is paid. See id. The

action shall then proceed as if the entire initial partial filing

fee had been paid. See id. at 606. Thereafter, the custodial

institution shall withdraw from the account all funds deposited

into the account as they become available and transmit the funds

to the clerk of the district court until the entire initial

partial filing fee is paid. See id. at 606.

If the inmate trust account contained no funds for the sixmonth period immediately preceding the filing of the complaint,

the district court should issue an order assessing an initial
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partial filing fee of $0, and the prisoner should be ordered to

pay the full filing fee in installments. § 1915(b)(2); McGore,

114 F.3d at 606-07. “In 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.” 

§ 1915(b)(4); see also Walp v. Scott, 115 F.3d 308, 310 (5th Cir.

1997).

The IFP order should also direct the custodial institution

that after the partial filing fee has been paid, the custodial

institution shall withdraw from the inmate trust fund account the

remainder of the filing fee in accordance with § 1915(b)(2). See

McGore, 114 F.3d at 607. The custodial institution shall

withdraw 20 percent of the preceding month’s income credited to

the prisoner’s account and transmit the funds to the clerk of the

district court each time the amount in the account exceeds $10,

until the entire district court filing fee is paid. 

§ 1915(b)(2); McGore, 114 F.3d at 607.

A prisoner proceeding IFP in the district court is obligated

to pay the full filing fee upon the filing of a complaint. 

§ 1915(b)(1). No relief from an order directing payment of the

filing fee should be granted for a voluntary dismissal. Williams

v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997)(“[W]e hold that

the plain language of the PLRA requires that appellate fees be
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assessed at the moment the appeal is filed, regardless of whether

the appeal is later dismissed.”); McGore, 114 F.3d at 607.

If it appears that the prisoner has not complied with the

district court’s initial partial filing fee order within the

applicable time period, the district court should take reasonable

steps to ascertain whether the prisoner has complied with the

order by allowing objections to a magistrate judge’s report, see

28 U.S.C. § 636(b)(1)(C), issuing a show-cause order, see

Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980),

communicating by telephone, fax, or e-mail with officials of the

custodial institution, issuing an order to the custodial

institution, or using any other method designed to obtain the

relevant information. Any inquiry and any response should be

made a part of the record to allow this court to review any

subsequent dismissal. When a prisoner is allowed to file a

response to a magistrate judge’s report or a show-cause order, a

sworn affidavit or unsworn declaration made under penalty of

perjury under 28 U.S.C. § 1746, setting forth the details of his

compliance or copies of any relevant consent forms ordinarily

will be sufficient to avoid dismissal for failure to comply with

an initial partial filing fee order. Prisoners are reminded that

false statements in their pleadings may result in sanctions

against them, see Fed. R. Civ. P. 11(c), including dismissal with

or without prejudice, and that false statements in an affidavit
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or unsworn declaration made under penalty of perjury may result

in prosecution for perjury. 18 U.S.C. § 1621.

Accordingly, it is ORDERED that the judgment of the district

court dismissing Hatchet’s § 1983 action is VACATED and that the

case is REMANDED for further proceedings consistent with this

opinion.

VACATED AND REMANDED.