## 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 f or 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 2 8 2 U.S.C.A. § 1915 (West Supp. 1997)).
-2- Ark ansas prisoner Harold Henderson appeals from th e dis trict court & s summary dismissal of his 42 U.S.C

. 1 § 1983 complaint as frivolous. Henderson sued th e direc tor and assistant director of the Arkansa s Department of Correction, alleging due proces s violations in the defendants & (1) failure to timely and properl y proc ess unspecified grievances and (2) failure to allo w Hend erson to participate in establishing a grievanc e poli cy. Upon preliminary review, the district cour t dismissed the complaint without prejudice and certifie d anyappeal would not be in good faith. The distric t court clerk and the clerk of this court notifie d Hend erson of the fee requirements under the Priso n Litigat ion Reform Act of 1995 (PLRA). Henderso n 2 persisted in his appeal, arguing his notice o f appeal was timely but ignoring the fee requirements. We requir e Henderson to pay appellate fees in accord with 28 U.S.C. § 1915, as amended by the PLRA, determine t he procedure to be usedto assess, calculate, and collect the fees he owes, and summarily affirm the district court.

I

We have stated that the PLRA “makes prisoner s responsible for their filing fees the moment the prisoner . . . file s an appeal.” In re Tyler , 110 F.3d 528, 529- 30 (8th Cir. 1997). The Sixth Circuit has held tha t-3-

“[w]hen aninmate seeks pauper status, the only issue is whether th e inmate pays the entire fee at the initiation of th e proceeding or over a period of time under a n installment plan.” See McGore v. Wriggleswor th , 114 F.3d 601 , 604 (6th Cir. 1997). Thus, prisoners who appea l judgments in civilA $5 filing fee is required by 28 U.S.C. § 1915 and a $100 docketing fee i s 3 required by the Judicial Conference of the Unite d States. We refer to the total $105 as "appellate filing fees" in this opinion.
-4- cases must sooner or later pay the appellate filing fees in full. Newlin v. Helman , 123 F.3d 429, 432 (7th Cir.

3 1997). Ho wever, the provisions of § 1915(b)(4) permit a priso ner to appeal if the prisoner has no assets and n o
mean s to pay the initial partial appellate filing fee

. In such a case, the whole of the appellate filing fee s
are to be collected and paid by the installment metho d contained in § 1915(b)(2).

The M cGore court reasoned that the introductor y clauses of subsections (a)(1) and (b)(1) of § 191 5
ex cluded the good faith certification provision o f subsection(a)(3) from the prisoner appeal process. See id. at 610-11. On the other hand, the Fifth Circuit i n Baugh v. Taylor , 117 F.3d 197, 199 (1997), re conciled the coexistenc e of subsections (a)(1), (b)(1), and (a)(3) by using Federal Rule of Appellate Procedure 24(a) and it s thir ty-year history of implementation. Id. at 201 ;
acc ord Newlin , 123 F.3d at 432. Our own history of th e imple mentation of Federal Rule of Appellate Procedur e 24( a), see Perry v. Ralston , 635 F.2d 740 (8th Cir

. 1980), puts us more in line with the Baugh v. Taylo r court thanwith the McGore court. Consequently, we hold tha t civil action prisoner-appellants who have bee n denied the right to proceed on appeal in forma pauperi s by the district court because the district court ha s certified under § 1915(a)(3) that the appeal would not be taken in g ood faith, may still, by separate motion filed with th is court pursuant to Federal Rule of Appellat e-5-

Procedure 24(a), seek to proceed in this court under the provisions of § 1915. We further hold that t he filing of
su ch a motion with this court triggers the prisoner

appellant' s responsibility to pay the full amount of the appellate filing fees pursuant to the install ment payment provi sions of § 1915(b), see Baugh at 202, unless th e app ellant must pay the full amount up front in cas h beca use he has acquired the requisite "three strikes " under § 1915(g).-6-

In im plementing the PLRA, we believe it useful t o di stinguish the “assessment,” “calculation,” an d “col lection” of appellate filing fees. As indicate d abov e, the assessment of appellate filing fees occur s upon the f iling of a notice of appeal or the filing of a motio n to proceed in forma pauperis with this cour t purs uant to Federal Rule of Appellate Procedure 24(a) , and fixes responsibility for payment sooner or later o f the fees i n full. The calculation of the initial partial appellate filing fee occurs upon the availability of the certificationof a prisoner-appellant & s prison account an d lea ds to an order to prison officials to deduct th e initial partial appellate fee and installment payment s fr oma prisoner-appellant & s account. The collection o f the initial payment and the later installment payment s (the latter to be calculated and remitted by priso n officials pursuant to § 1915(b)(2)) occurs over whatever time is needed for the payment of the assesse d fees. The calculation and collectionsteps do not delay the court & s resolut ion of the merits of the appeal. Once appellat e filing fees are assessed, the court may proceed a s appropriate to consider the particular case, for example, to dism iss the appeal as frivolous or malicious unde r § 1915(e)(2)(B)(i), to summarily dispose of t he appeal in accord with the pleadings and district court record, o r to order briefing, argument, and full submission

. Irrespective of the court's approach to the m erits of the appeal, th e prisoner's liability for the full payment of the appell ate filing fees under the PLRA continues until full payment has been made which may be long after w e have disposed of the appeal.

With r egard to this case, and to implement th e-7-

congressio nal intent of requiring prisoner-appellants to pay a ppellate filing fees in full, we establish th e following procedures:

(1) When the district court notifies the prisone r li tigant in a civil action of its judgment, the cour t shall notify the prisoner that: (a) the filing of a notice of appeal by the prisoner makes the prisoner liabl e for pay ment of the full $105 appellate filing fee s regardless of the outcome of t he appeal; (b) by filing a notice of appeal the prisoner consents to the deduction o f the initial partial appellate filing fee and the remainin g-8-

installments from the prisoner 's prison account by prison offi cials; (c) the prisoner must submit to the clerk o f 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) Wh en a district court receives a prisoner' s noti ce of appeal in a prisoner's civil action, it shal l
assess the $105 appellate filing fees and process th e appeal in ordinary course.

(3) W hen the district court receives the certifie d copy of the prisoner's prison account, it shall : (a) calculate the initial appe llate partial filing fee as providedby § 1915(b)(1), or determine that the provision s of § 1915 (b)(4) apply. In such event the whole of th e appe llate filing fees shall be paid pursuant to th e installment payment provisions of § 1915(b)(2) ; (b) not ify the prison officials to pay the initia l 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 pai d in full as provided by § 1915(b)(2); and (c) send a copy of the collection order to the prisoner.

(4) I f 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 th e-9-

initial appellate partial fili ng 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 dela y in providing a certified copy of the prison account, the district court may extend the time for providing the copy

.-10-

District courts should continue to certify pursuan t to § 1915(a)(3) and Federal Rule of Appellate Procedur e 24(a) whether or not an appeal by any appellant who ha s moved in the district court to proceed in forma pauperis
on appeal is or is not taken in good faith. If th e district court concludes that such an appeal is not taken in good faith, it shall, pursuant to Federal Rule o f 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 Rul e of Appellate Procedure 24(a), but, as we have indicated, the filing of such a motion by a prisoner-appellan t results in the immediate asses sment of the full appellate filing fees under § 1915(b).

In th is case — processed before our establishment of pro cedures — we assess Henderson & s appellate filing fee s at $ 105 and notify him that he has 30 days to submit t o the district court a certifiedcopy of his prison account for the six months immediately before the filing of hi s appeal. We leave it to the district court to calculate Hende rson's initial partial appellate filing fee and t o order collection of that fee and the remainin g installments from him in accord with § 1915 and th e procedures outlined above.

II

We n ow consider Henderson & s appeal. We agree wit h Henderson that his notice of appeal was timely unde r Federal Rule of Appellate Proc edure 4(c) (notice is filed when deposited in institution & s internal mail system)

. Upon our review of the distric t court record, however, weWe are mindful that the affirmance of a district court & s dismissal of a complaint 4 as frivolous does not automatically make the appeal frivolous.
-11- aff irmthe judgment of the district court under Eight h Cir cuit Rule 47A(a), conclude that Henderson & s appeal i s friv olous, and notify him that the dispositions of bot h 4 his c omplaint and his appeal are “strikes” unde r § 1915(g). Newlin , 123 F.3d at 433.-12-

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

mayfile a motion to proceed under § 1915 despite the fact that the district court ha s certifiedthat the appeal is not taken in good faith, and that the filing of such a motion triggers th e prisoner's duty to pay the filing fees, subject to certain exceptions. With respect, however, Icannot 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 thepresent one, or, indeed, in any other kind of case. The court engages not i n adjudicatio n, but in rule-making, and rule-making, moreover, of a kind for which th e 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 th e district court's handling of cases under the PLRA.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHT H CIRCUIT.