* After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary. Thus, the appeal is

submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4392

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL C. ANTONELLI,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 78 CR 721—William T. Hart, Judge.

____________

SUBMITTED APRIL 5, 2004*—DECIDED JUNE 3, 2004

____________

Before BAUER, COFFEY, and ROVNER, Circuit Judges.

PER CURIAM. Federal inmate Michael C. Antonelli, who

is currently serving sentences for a 1997 bank fraud and a

2001 bank robbery at the United States Penitentiary in

Beaumont, Texas, filed in the district court a self-styled

“Motion for a Court Order Allowing Defendant to Possess
2 No. 02-4392

the Presentence Investigation Report,” challenging a newly

enacted Bureau of Prisons (BOP) policy forbidding inmates

serving a sentence in custody from retaining possession of

their presentence reports in their cells. See Bureau of

Prisons Program Statement 1351.05, Release of Information, (Sept. 19, 2002). Antonelli was unhappy that he could

not keep in his cell a copy of his presentence report prepared after convictions in the Northern District of Illinois

on 1978 firebombing charges. But rather than bringing an

independent civil action in the district where he is confined,

Antonelli filed his motion in the Northern District of Illinois

using the cause number from his 1978 criminal case. The

district court denied the motion in a minute order, concluding that Antonelli had adequate access to his presentence

report under the BOP policies. We conclude, however, that

Antonelli was not entitled to a merits ruling without prior

compliance with the procedural requirements of the Prison

Litigation Reform Act (PLRA), and thus we vacate the

district court’s judgment and remand for further proceedings.

Because Antonelli filed his “motion” under the districtcourt cause number of his 25-year-old criminal case and

even captioned the United States as the plaintiff, the district court understandably appears to have viewed the filing

as an additional motion in that long-finished proceeding.

When determining the character of a pro se filing, however,

courts should look to the substance of the filing rather than

its label. Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.

2002); Godoski v. United States, 304 F.3d 761, 763 (7th Cir.

2002). And what Antonelli filed is not a motion in the 1978

criminal case but in actuality a separate, unrelated civil

action raising a facial challenge to a BOP policy. See United

States v. Campbell, 294 F.3d 824, 826-27 (7th Cir. 2002)

(per curiam) (recognizing that motion seeking access to

grand jury transcripts was civil action even though filed

under old criminal case number because motion had
No. 02-4392 3

independent jurisdictional basis); Smith v. United States

Dist. Ct. Officers, 203 F.3d 440, 441 (7th Cir. 2000) (claim

for access to judicial court records not writ of mandamus

but civil action under federal question jurisdiction). That

distinction leads us to the real problem in this appeal. 

Because Antonelli’s filing is appropriately seen as an

attempt to commence a new civil suit, the PLRA subjected

him to significant procedural constraints and potential

consequences that he in effect evaded by using his old

criminal case number. See United States v. Howell, 354 F.3d

693, 695 (7th Cir. 2004); Moran v. Sondale, 218 F.3d 647,

649 (7th Cir. 2000) (per curiam). The PLRA first mandates

that inmates exhaust their administrative remedies before

bringing a civil action challenging prison conditions, which

is what Antonelli’s “motion” does. See 42 U.S.C. § 1997e(a);

Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000).

Furthermore, had Antonelli properly designated his filing

as a civil action that bears no relation to his 1978 criminal

case, the district court would have initially screened his

claim to determine whether it was frivolous, malicious, or

failed to state a claim before putting the defendant to the

burden of responding. See 28 U.S.C. § 1915A(b);

Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).

Antonelli thus also avoided the risk of incurring a strike

should the district court have screened and dismissed the

suit; after three such strikes, inmates cannot proceed in

forma pauperis unless under imminent danger of serious

physical injury. 28 U.S.C. § 1915(g); Pischke v. Litscher, 178

F.3d 497, 500 (7th Cir. 1999); Evans v. Ill. Dept. of Corr.,

150 F.3d 810, 811 (7th Cir. 1998). In addition, even when

granting in forma pauperis status, the district court

assesses an initial partial filing fee that a prisoner must

prepay, and the entire filing fee will eventually be deducted

from the inmate’s prison trust account. See 28 U.S.C.

§ 1915(b); Hains v. Washington, 131 F.3d 1248, 1250 (7th

Cir. 1997) (per curiam). In this instance, the processing of
4 No. 02-4392

Antonelli’s submission as if it were a motion in his old

criminal case enabled Antonelli to escape paying up front at

least part the $150 filing fee for civil cases, as well as his

responsibility for paying the entire fee over time from his

prison trust account. See Moran, 218 F.3d at 649. The same

is true with the appellate fees in this court. Had Antonelli

been required to adhere to limitations imposed by the

PLRA, he may have decided not to risk the consequences

attached to filing a civil suit, or to pursuing it on appeal

after it had been lost. See Pischke, 178 F.3d at 500 (recognizing that prisoners when thwarted from improperly

disguising civil action as petition for habeas corpus may

decide to drop claim rather than risk consequences associated with PLRA). Finally, we note that once a district court

has granted in forma pauperis status and screened a

prisoner complaint under § 1915A, it will direct the United

States Marshals Service to ensure that proper service is

effected on the defendant, which might have provided the

BOP with a better understanding of, and realistic opportunity to defend against, Antonelli’s claim (as opposed to

Antonelli’s effort, which resulted in his “motion” being

routed to the criminal division of the United States Attorney’s Office for the Northern District of Illinois). See 28

U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2); Graham v.

Satkoski, 51 F.3d 710, 712 (7th Cir. 1995) (Marshals Service

is required to serve process on behalf of individuals proceeding in forma pauperis); see also Fed. R. Civ. P. 4(I)(1) (civil

action challenging action of administrative agency must be

served on the U.S. Attorney in the appropriate district; a

copy of the complaint and summons must also be sent to the

Attorney General and the agency).

The PLRA seeks to balance an inmate’s right of access to

the courts against both the need to curtail frivolous litigation that overwhelms the judicial system and the benefit

of giving prison officials the first opportunity to address

problems in the system. See Kincade v. Sparkman, 117 F.3d
No. 02-4392 5

949, 950-51 (6th Cir. 1997); see also Smith v. Zachary, 255

F.3d 446, 450-51 (7th Cir. 2001). Keeping these purposes in

mind, we will not permit Antonelli to evade the PLRA’s

mandates. See Moran, 218 F.3d at 651 (“Prisoners who play

games to avoid the PLRA should not expect courts to

cooperate.”). The 62 appeals that Antonelli has filed in this

circuit alone over the last 16 years exemplify the need to

strictly enforce these provisions.

Accordingly, although we in no way suggest disagreement

with the district court’s evaluation of the merits of

Antonelli’s claim, we conclude that the district court should

not have reached the merits without first enforcing the

PLRA. Cf. Sloan v. Lesza, 181 F.3d 857, 858 (7th Cir. 1999).

We thus VACATE the district court’s judgment and REMAND

for further proceedings. On remand the district court should

first assess and begin collecting the appellate fees for this

appeal using the procedures set out in 28 U.S.C. § 1915(b);

the court should then proceed to apply all applicable PLRA

provisions to Antonelli’s civil action. Any subsequent appeal

by Antonelli from an adverse judgment following remand

will in turn prompt additional appellate fees.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-3-04