UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

___________

No. 97-1813

___________

Harold Henderson, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Larry Norris, Director, Arkansas * Eastern District of Arkansas.

Department of Correction; David *

Guntharp, Assistant Director, * [Published]

Arkansas Department of Correction, *

*

Appellees. *

___________

Submitted: August 5, 1997 

 Filed: November 19,

1997

___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

PER CURIAM.
The Honorable George Howard, Jr., United States District Judge for the Eastern 1

District of Arkansas, adopting the report and recommendation of the Honorable Jerry

W. Cavaneau, United States Magistrate Judge for the Eastern District of Arkansas.

Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996) (codified at 28

2

U.S.C.A. § 1915 (West Supp. 1997)).

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Arkansas prisoner Harold Henderson appeals from the

district court&s summary dismissal of his 42 U.S.C.

1

§ 1983 complaint as frivolous. Henderson sued the

director and assistant director of the Arkansas

Department of Correction, alleging due process violations

in the defendants& (1) failure to timely and properly

process unspecified grievances and (2) failure to allow

Henderson to participate in establishing a grievance

policy. Upon preliminary review, the district court

dismissed the complaint without prejudice and certified

any appeal would not be in good faith. The district

court clerk and the clerk of this court notified

Henderson of the fee requirements under the Prison

Litigation Reform Act of 1995 (PLRA). Henderson

2

persisted in his appeal, arguing his notice of appeal was

timely but ignoring the fee requirements. We require

Henderson to pay appellate fees in accord with 28 U.S.C.

§ 1915, as amended by the PLRA, determine the procedure

to be used to assess, calculate, and collect the fees he

owes, and summarily affirm the district court.

I

We have stated that the PLRA “makes prisoners

responsible for their filing fees the moment the prisoner

. . . files an appeal.” In re Tyler, 110 F.3d 528, 529-

30 (8th Cir. 1997). The Sixth Circuit has held that
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“[w]hen an inmate seeks pauper status, the only issue is

whether the inmate pays the entire fee at the initiation

of the proceeding or over a period of time under an

installment plan.” See McGore v. Wrigglesworth, 114 F.3d

601, 604 (6th Cir. 1997). Thus, prisoners who appeal

judgments in civil
A $5 filing fee is required by 28 U.S.C. § 1915 and a $100 docketing fee is

3

required by the Judicial Conference of the United States. We refer to the total $105 as

"appellate filing fees" in this opinion. 

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cases must sooner or later pay the appellate filing fees

in full. Newlin v. Helman, 123 F.3d 429, 432 (7th Cir. 3

1997). However, the provisions of § 1915(b)(4) permit a

prisoner to appeal if the prisoner has no assets and no

means to pay the initial partial appellate filing fee.

In such a case, the whole of the appellate filing fees

are to be collected and paid by the installment method

contained in § 1915(b)(2). 

The McGore court reasoned that the introductory

clauses of subsections (a)(1) and (b)(1) of § 1915

excluded the good faith certification provision of

subsection (a)(3) from the prisoner appeal process. See

id. at 610-11. On the other hand, the Fifth Circuit in

Baugh v. Taylor, 117 F.3d 197, 199 (1997), reconciled the

coexistence of subsections (a)(1), (b)(1), and (a)(3) by

using Federal Rule of Appellate Procedure 24(a) and its

thirty-year history of implementation. Id. at 201;

accord Newlin, 123 F.3d at 432. Our own history of the

implementation of Federal Rule of Appellate Procedure

24(a), see Perry v. Ralston, 635 F.2d 740 (8th Cir.

1980), puts us more in line with the Baugh v. Taylor

court than with the McGore court. Consequently, we hold

that civil action prisoner-appellants who have been

denied the right to proceed on appeal in forma pauperis

by the district court because the district court has

certified under § 1915(a)(3) that the appeal would not be

taken in good faith, may still, by separate motion filed

with this court pursuant to Federal Rule of Appellate
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Procedure 24(a), seek to proceed in this court under the

provisions of § 1915. We further hold that the filing of

such a motion with this court triggers the prisonerappellant's responsibility to pay the full amount of the

appellate filing fees pursuant to the installment payment

provisions of § 1915(b), see Baugh at 202, unless the

appellant must pay the full amount up front in cash

because he has acquired the requisite "three strikes"

under § 1915(g). 
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In implementing the PLRA, we believe it useful to

distinguish the “assessment,” “calculation,” and

“collection” of appellate filing fees. As indicated

above, the assessment of appellate filing fees occurs

upon the filing of a notice of appeal or the filing of a

motion to proceed in forma pauperis with this court

pursuant to Federal Rule of Appellate Procedure 24(a),

and fixes responsibility for payment sooner or later of

the fees in full. The calculation of the initial partial

appellate filing fee occurs upon the availability of the

certification of a prisoner-appellant&s prison account and

leads to an order to prison officials to deduct the

initial partial appellate fee and installment payments

from a prisoner-appellant&s account. The collection of

the initial payment and the later installment payments

(the latter to be calculated and remitted by prison

officials pursuant to § 1915(b)(2)) occurs over whatever

time is needed for the payment of the assessed fees. The

calculation and collection steps do not delay the court&s

resolution of the merits of the appeal. Once appellate

filing fees are assessed, the court may proceed as

appropriate to consider the particular case, for example,

to dismiss the appeal as frivolous or malicious under

§ 1915(e)(2)(B)(i), to summarily dispose of the appeal in

accord with the pleadings and district court record, or

to order briefing, argument, and full submission.

Irrespective of the court's approach to the merits of the

appeal, the prisoner's liability for the full payment of

the appellate filing fees under the PLRA continues until

full payment has been made which may be long after we

have disposed of the appeal. 

With regard to this case, and to implement the
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congressional intent of requiring prisoner-appellants to

pay appellate filing fees in full, we establish the

following procedures: 

(1) When the district court notifies the prisoner

litigant in a civil action of its judgment, the court

shall notify the prisoner that: (a) the filing of a

notice of appeal by the prisoner makes the prisoner liable

for payment of the full $105 appellate filing fees

regardless of the outcome of the appeal; (b) by filing a

notice of appeal the prisoner consents to the deduction of

the initial partial appellate filing fee and the remaining
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installments from the prisoner's prison account by prison

officials; (c) the prisoner must submit to the clerk of

the district court a certified copy of the prisoner's

prison account for the last six months within 30 days of

filing the notice of appeal; and (d) failure to file the

prison account information will result in the assessment

of an initial appellate partial fee of $35 or such other

amount that is reasonable, based on whatever information

the court has about the prisoner's finances.

(2) When a district court receives a prisoner's

notice of appeal in a prisoner's civil action, it shall

assess the $105 appellate filing fees and process the

appeal in ordinary course.

(3) When the district court receives the certified

copy of the prisoner's prison account, it shall:

(a) calculate the initial appellate partial filing fee as

provided by § 1915(b)(1), or determine that the provisions

of § 1915(b)(4) apply. In such event the whole of the

appellate filing fees shall be paid pursuant to the

installment payment provisions of § 1915(b)(2);

(b) notify the prison officials to pay the initial

appellate partial fee from the prisoner's account to the

clerk of the district court and to calculate and pay the

remaining installments to the clerk of the district court

until the whole of the appellate filing fees has been paid

in full as provided by § 1915(b)(2); and (c) send a copy

of the collection order to the prisoner. 

(4) If the district court does not receive a

certified copy of the prisoner's prison account within 30

days of the notice of appeal, it shall calculate the
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initial appellate partial filing fee at $35 or such other

reasonable amount warranted by available information and

proceed as in paragraph 3, above.

(5) Upon a prisoner's showing of good cause for delay

in providing a certified copy of the prison account, the

district court may extend the time for providing the copy.
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District courts should continue to certify pursuant

to § 1915(a)(3) and Federal Rule of Appellate Procedure

24(a) whether or not an appeal by any appellant who has

moved in the district court to proceed in forma pauperis

on appeal is or is not taken in good faith. If the

district court concludes that such an appeal is not taken

in good faith, it shall, pursuant to Federal Rule of

Appellate Procedure 24(a), "state in writing the reasons

for the denial." Such a denial remains reviewable under

the appellate motion practice provided for in Federal Rule

of Appellate Procedure 24(a), but, as we have indicated,

the filing of such a motion by a prisoner-appellant

results in the immediate assessment of the full appellate

filing fees under § 1915(b). 

In this case — processed before our establishment of

procedures — we assess Henderson&s appellate filing fees

at $105 and notify him that he has 30 days to submit to

the district court a certified copy of his prison account

for the six months immediately before the filing of his

appeal. We leave it to the district court to calculate 

Henderson's initial partial appellate filing fee and to

order collection of that fee and the remaining

installments from him in accord with § 1915 and the

procedures outlined above.

II

We now consider Henderson&s appeal. We agree with

Henderson that his notice of appeal was timely under

Federal Rule of Appellate Procedure 4(c) (notice is filed

when deposited in institution&s internal mail system).

Upon our review of the district court record, however, we
We are mindful that the affirmance of a district court&s dismissal of a complaint 4

as frivolous does not automatically make the appeal frivolous.

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affirm the judgment of the district court under Eighth

Circuit Rule 47A(a), conclude that Henderson&s appeal is

frivolous, and notify him that the dispositions of both

4

his complaint and his appeal are “strikes” under

§ 1915(g). Newlin, 123 F.3d at 433. 
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MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and dissenting.

I concur in so much of the court's opinion as holds that a prisoner in a civil action

may file a motion to proceed under § 1915 despite the fact that the district court has

certified that the appeal is not taken in good faith, and that the filing of such a motion

triggers the prisoner's duty to pay the filing fees, subject to certain exceptions. With

respect, however, I cannot locate in any statute or common-law principle the authority

that the court evidently asserts to promulgate rules for the district courts in cases like

the present one, or, indeed, in any other kind of case. The court engages not in

adjudication, but in rule-making, and rule-making, moreover, of a kind for which the

court does not even purport to find a warrant. I therefore respectfully dissent from the

portion of the court's judgment that derives from the part of its opinion regulating the

district court's handling of cases under the PLRA.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.