FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 AUGUST 7, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14053

Non-Argument Calendar

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D.C. Docket No. 07-01782-CV-RLV-1

CORNELIUS MARTIN, II,

 

Plaintiff-Appellant, 

versus

UNITED STATES OF AMERICA,

MICHAEL ZENK,

X. SHUMAN,

HECTOR LOPEZ,

Individually,

 Defendants-Appellees. 

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Appeal from the United States District Court

for the Northern District of Georgia 

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(August 7, 2008)

Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
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PER CURIAM:

Plaintiff-Appellant Cornelius Martin, II, a pro se federal prisoner, appeals

the district court’s dismissal of his complaint, which raised claims under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., and Bivens v. Six

Unknown Named Agents of the Fed. Bureau of Narcotics, 91 S.Ct. 1999 (1971). 

The district court dismissed the complaint without prejudice because Martin’s

allegation of poverty was untrue, 28 U.S.C. § 1915(e)(2)(A). No reversible error

has been shown; we affirm.

Martin’s FTCA claim stemmed from an injury he received when he tripped

on a sidewalk at the Federal Prison Camp Atlanta, where he was housed. He also

alleged, under Bivens, that he received inadequate medical care for this injury in

violation of the Eighth Amendment. With his complaint, on 26 July 2007, Martin

submitted an affidavit of indigency, dated 22 May 2007, which indicated he

received $200 a month from friends and relatives; and as of the date of the

affidavit’s execution, he had $33.36 in his prison bank account. His prison trust

fund account statement -- run on 24 May 2007 although it was supposed to cover

the six-month period immediately preceding the filing of his complaint, 28 U.S.C.

§ 1915(a)(2) -- noted that he had received a total of $1,818 in deposits in the

previous six months and had a maximum balance of $358.61 in the preceding 30
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days. His average balance for the six-month period of the statement was $233.56

while the average monthly deposit was $303.

Martin had submitted the identical affidavit and prison trust fund account

statement in another civil action -- Martin v. Zenk, 1:06-CV-3065 (N.D. Ga. 2007)

-- filed in the same federal district and assigned to the same federal district court

judge. In Martin v. Zenk, the district court concluded that Martin was unentitled

to proceed in forma pauperis and dismissed Martin’s complaint without prejudice:

Although it is true that as of May 22, 2007, the plaintiff had only $33.36 in

his account, the prison records show that he had deposits of $1818.00 in the

preceding six months and had a maximum balance of $358.61 in the

preceding 30 days. The court finds that plaintiff had sufficient funds to

prosecute this action but chose to spend those funds on matters other than

this litigation.

This Court affirmed that dismissal stating that the dismissal without prejudice was

proper in the light of Martin’s failure to demonstrate poverty.

In the instant suit, Martin again sought leave to proceed without the

prepayment of fees or costs pursuant to 28 U.S.C. § 1915(a)(1) claiming that his

poverty rendered him unable to make the required payments. In support of his

request, Martin submitted the very same documents that he had submitted in

Martin v. Zenk and on which the district court had ruled -- a ruling we later

affirmed -- that the allegation of poverty was untrue. Again because the allegation
 Although the district court’s dismissal was without prejudice, it may be that his FTCA claim was 1

time-barred on the date of dismissal. Martin filed his complaint in July 2007, and the limitations

period seems to have expired on his FTCA claim in August 2007, six months after the denial of his

last administrative appeal. 28 U.S.C. § 2401(b). But because Martin has advanced no argument that

the district court dismissal operated to prejudice his FTCA claim, we do not address the import of

prejudice, if any exists. Also we make no intimations about prejudice on Martin’s Bivens claim.

From his complaint, it is unclear when the statute of limitations began.

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of poverty was untrue, the district court denied Martin leave to proceed in forma

pauperis. Noting the compulsory language of section 1915(e)(2)(A) that a federal

court “shall dismiss” a proceeding in forma pauperis “at any time if the court

determines that the allegation of poverty is untrue,” the district court dismissed

Martin’s case without prejudice.1

Martin complains that the district court erred by not giving him the

opportunity to explain the depletion in his account; and in support of his argument,

Martin cites Collier v. Tatum, 722 F.2d 653 (11 Cir.1983). Collier was decided th

under a previous version of the IFP statute -- then 28 U.S.C. § 1915(d) -- which

provided that the court “may dismiss the case if the allegation of poverty is

untrue.” See Camp v. Oliver, 798 F.2d 434, 437 (11 Cir. 1986) (noting that th

“[u]nder the clear and unambiguous language of [former section 1915(d)],

dismissal is not mandatory, but discretionary.”). Under that version of the statute,

Collier said that where decreases in a prisoner’s trust account are considered to be

a basis for denial of indigent status, “the prisoner should be given some reasonable
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opportunity, after appropriate notice, to explain and refute any finding to that

effect.” Id. at 656 (quoting Evans v. Croom, 650 F.2d 521, 527 (4 Cir. 1981)). th

Assuming arguendo that Collier applies to the revised IFP statute despite

the use of the compulsory “shall dismiss” language over the now-discarded

permissive“may dismiss” language, we see no reversible error. Martin is not

unfamiliar with the rules applicable to in forma pauperis applications. And

Martin was on notice from his earlier submission of these documents that they

failed to support his allegations of poverty. Fully advised of the inadequacy of

this affidavit and prison trust statement to establish indigency, Martin relied on

these documents without adding explanation or otherwise seeking to refute the

district court’s earlier rejection of these materials in Martin v. Zenk. Whatever

process may be required to assure that a litigant has a full and fair opportunity to

be heard, no litigant is entitled to be heard on the same question over and over

again.

AFFIRMED.