UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-50891

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Gary Reed Walp,

Plaintiff-Appellant,

versus

Wayne Scott, Director, Texas Department of Criminal Justice,

Institutional Division; Allen B. Polunsky; Ellen J. Halbert; Carole

S. Young; Jos hua W. Allen; R.H. Duncan; John R. Ward; John David

Franz; Nancy Patton; Carol S. Vance,

Defendants-Appellees.

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Appeal from the United States District Court for the

Western District of Texas

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June 6, 1997

Before WISDOM, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

This case involves an appeal from the district court’s denial

of in forma pauperis (“IFP”) status and the subsequent dismissal of

a prisoner’s claim brought pursuant to 42 U.S.C. § 1983. The

district court interpreted the recently enacted Prisoner Litigation1 The federal in forma pauperis statute is codified at 28

U.S.C. § 1915. The PLRA significantly amended that statute. S ee

Pub. L. No. 104-134, 110 Stat. 1321 (1996).

2 Walp’s motion contained sufficient documentation to satisfy

the requirements of § 1915(a) of the Act. This documentation

included Walp’s declaration, under penalty of perjury, that he had

no assets or financial resources with which to pay the requisite

filing fees. In addition, Walp provided certification from the

Texas Department of Criminal Justice that both his current account

balance and his average account balance for the previous six months

were $0.00.

2 Reform Act of 1996 (“PLRA” or “the Act”) 1 to bar the filing of a

second civil rights complaint because the appellant had not fully

paid the costs associated with filing a previous claim. Because

the district court’s decision was not authorized by the language of

the PLRA and was inconsistent with the statutory scheme, we vacate

the judgment of the district court.

I. Background

On May 28, 1996, Gary Reed Walp filed a complaint in federal

district court under 42 U.S.C. § 1983 alleging that several of the

prison guards where he is confined violated his constitutional

rights. In addition, Walp filed a motion to proceed IFP and

documents regarding his financial status necessary to comply with

the PLRA. See 28 U.S.C. § 1915(a). Walp was assessed an initial

filing fee of 14¢ and granted permissio n to proceed IFP upon the

court’s receipt of the requisite payment. See id. § 1915(b).

On August 30, 1996, Walp filed the subject § 1983 claim and

motion to proceed IFP. 2 The district court s ua sponte entered an3

o rder denying the motion to proceed IFP and dismissing the

complaint. The court held that unless Walp’s previously filed

complaint was dismi ssed voluntarily or for failure to prosecute,

Walp could not file any other complaints until the full filing fee

was paid in his previously filed case. Because Walp had paid only

14¢ toward the $1 20 filing fee in the previously filed case, the

court denied IFP status and dismissed the complaint.

Walp timely filed his notice of appeal. On February 26, 1997,

this court gran ted Walp’s motion to proceed IFP on appeal. This

appeal followed.

II. Discussion

When Congress originally enacted the federal in forma pauperis

statute, it “intended to guarantee that no citizen shall be denied

an opportunity to commence, prosecute, or defend an action, civil

or criminal, in any court of the United States, solely because

...

poverty makes it impossible

... to pay or secure the costs of

litigation.” D enton v. Hernandez

, 504 U.S. 25, 31 , 112 S. Ct.

1 728, 118 L.Ed.2d 340 (1992) (internal quotations and citat ions

omitted). At the same time that it sought to increase indigent

persons’ access to the courts, however, “Congress recognized that

a litigant whose filing fees and court costs are assumed by the

p ublic, unlike a paying litigant, lacks an economic incentive to

refrain from filing frivolous, malicious, or repetitive lawsuits.”

Id. (internal quotations and cit ations omitted). Therefore,3 See 141 C ONG . R EC . S14413 (daily ed. Sept. 27, 1995).

4 Id.

4 Congress included a statutory provision that allowed a court to

dismiss a pauper’s case if the court was satisfied that the

complaint was frivolou s or malicious. I d. ; see also 28 U.S.C. §

1915(d) (1994), amended by 28 U.S.C. § 1915(e) (Supp. 1997).

In 1996, in response to an “alarming explosion in the number

of frivolous lawsuits filed by State and Federal prisoners,” 3

Congress amended the federal IFP statute by enacting the PLRA. The

PLRA includes a number of provisions intended “to discourage

frivolous and abusive priso n lawsuits.” 4 First, the Act removes

some of a federal court’s discretion by requiring the court to

dismiss a case if it determines that the action or appeal is

frivolous, malicious, or fails to state a claim upon which relief

may be granted. 28 U.S.C. § 1915(e)(2). Second, the PLRA requires

inmates who file lawsuits to pay eventually the full amount of

their court fees and other costs and establishes a garnishment

procedure to ensure the collection of such debts

. See id. §§

1915(a), (b), & (c). Third, the Act generally revokes a prisoner’s

privilege to proceed IFP in any civil action if the prisoner has,

on three prior occasions during detention, had an action or appeal

dismissed as frivolous, malicious, or for failing to state a claim.

Id. § 1915(g); see generally Adepegba v. Hammons

, 103 F.3d 383 (5th

Cir. 1996 ) (resolving a number of issues of first impression5 Although the Seventh Circuit has suggested that

non compliance with the requirements of the Act could effect a

waiver of IFP status in subsequently filed cases, this rule is not

implicated in the instant case. S ee T hurman v. Gramley , 97 F.3d

185, 188 (7th Cir. 1996) (“ Now that payment of the filing fee is

obligatory, we will take nonpayment (for any reason other than

destitution) as a voluntary relinquishment of the rig ht to file

future suits in forma pauperis”). We express no view regarding the

merits of the Seventh Circuit’s position.

5 involving § 1915(g)).

Nowhere does the PLRA require a prisoner to pay the entire

filing fee in a prior civil case before filing a second complaint.

We believe that this fact, in and of itself, warrants reversal of

the district court’s decision in the insta nt case. S ee Pratt v.

Hurley

, 79 F.3d 601, 603 (7th Cir. 1996) (reversing the district

court’s “homemade rule that paupers can pursue only one case at a

time” and noting that such a rule “lacks statutory support and

cannot be reconciled with the courts’ obligation to exercise their

jurisdiction”). In addition, however, we believe that the district

court’s decision was inconsistent with the balance Congress struck

be tween ensuring poor persons’ access to the courts and

discouraging prisoners from filing frivolous claims.

We emphasize that Walp has thus far complied with the filing

requirements and garnishment procedures of the PLRA with respect to

both of his complaints. 5 Under these circumstances, dismissal of

Walp’s second complaint contradicted the directive of the PLRA that

“[i]n no event shall a prisoner be prohibited from bringing a[n

action] for the reason that the prisoner has no assets and no means6

by which to pay the initial filing fee.” 28 U.S.C. § 1915(b)(4).

Conversely, the decision to allow Walp to proceed IFP with his

second complaint is consistent with the purposes of the Act, so

long as he remains ultimately liable for the costs associated with

the case. See Strickland v. Rankin County Correctional Facility

,

105 F.3d 972, 975 n.2 (5th Cir. 1997) (noting that “the purpose of

the Act was to make prisoners feel the deterrent effect of filing

fee obligations bef ore burdening the court with frivolous

appeals”).

This court has recognized that the PLRA was intended “only to

penalize litigation that is truly frivolous, not to freeze out

meritorious claims or ossify district court errors.” A depegba

, 103

F.3d at 388. The effect of the district court’s decision, however,

was precisely to bar a potentially meritorious civil rights

complaint solely because Walp had not paid the entire costs

associated with filing his first claim--which, for all we know, may

also have merit.

Even assuming tha t one or both of Walp’s § 1983 claims are

frivolous, the district court’s decision remains problematic. The

court failed to follow the procedure that this court has

established for screening frivolous IFP claims, which requires an

initial determination of IFP status based solely on economic

factors, followed by an assessment of the applicability of the

statutory justifications for dismissal. M itchell v. Sheriff Dep’t,7

Lubbock County, Texas

, 995 F.2d 60, 62 n.1 (5th Cir. 1993).

Moreover, while the Act explicitly revokes a prisoner’s privilege

to proceed IFP if the prisoner has had three actions or appeals

dismissed as frivolous, malicious, or for failing to state a claim,

the district court’s decision had the practical effect of limiting

Walp to one IFP claim (regardless of its merits). In other words,

although Congress has allowed prisoners three strikes before

authorizing courts to call them out, the district court

impermissibly limited Walp to one swing-—whe ther he connects or

not.

III. Conclusion

The district court’s order, which required a prisoner to pay

the entire filing fee in a civil rights case before filing a second

complaint, was not supported by the plain language of the statute.

Moreover, the court’s application of this rule to a prisoner who

had complied with the procedures of the PLRA was inconsistent with

the purpos es underlying the Act. Finally, the district court’s

order had the effect of impermissibly limiting the number of

claims, frivolous or otherwise, that a pauper may bring. For the

foregoing reasons, the judgment of the district court is VACATED

and the case is REMANDED with instructions that the district court

issue an order requiring payment pursuant to the provisions of §

1915(b)(2) of the PLRA.8