# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 20163

**Iron Thunderhorse,**

Plaintiff

— Appellant **,**

versus

**Bryan Collier; Lorie Davis; Chaplain Rutledge; Laura Burgess,** 

Defendants

— Appellees

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18

- CV

- 1720

Befor e **Dennis ,**  **Southwick ,**  and **E ngelhardt**  **,** Circuit Judges

**. Per Curiam**  : *
Iron Thunderhorse, Texas prisoner # 00624391, moves for leave to proceed in forma pauperis (IFP) on appeal from the dismissal of his civil suit
under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act. The district court granted his motion to dismiss the complaint.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in
5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 11, 2020

Lyle W. Cayce Clerk Case: 19-20163 Document: 00515523418 Page: 1 Date Filed: 08/11/2020No. 19

- 20163

2 However, while Thunderhorse requested voluntary dismissal with out prejudice, the district court dismissed the case with pre judice.
By moving to proceed IFP, Thunderhorse is contesting the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997); see also 28 U.S.C. § 1915(a)(3). Our inquiry is limited to whether the appeal “involves legal points arguable on their merits (and therefore not frivolous)

. ” Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
Thunderhorse argues that the district court wrongly foun d that he did not financially qualify as a pauper. However, the district court did not decide that Thunderhorse failed to prove his indigence. Rather, the district court
found that the appeal was not taken in good faith because it d i d not present a
nonfr ivolous issue for appeal. To obtain leave to proceed IFP, he had to show both that he is impecunious and that the appeal is taken in good faith. See
Howard , 707 F.2d at 220.
He additionally suggests that the district court’s denial of IFP status

preven ted him from proceeding with an appeal or controlling the prosecution of his case. However, a finding that an inmate does not qualify for IFP status does not preclude him from accessing the courts, see Norton v. Dimazana , 122 F.3d 286, 290

- 91 (5th Cir. 19 97), or implicate his ability to proceed pro se, see 28 U.S.C. § 1654.

Thunderhorse contests the district court’s determination that his complaint should be dismissed with prejudice because he sought to reiterate claims that he raised in a prior proceedi ng. The district court found that Thunderhorse’s request for voluntary dismissal operated as an adjudication
on the merits.
The record supports that the pleading filed by Thunderhorse seeking the voluntary dismissal of his complaint was a motion under Fed eral Rule of Case: 19-20163 Document: 00515523418 Page: 2 Date Filed: 08/11/2020No. 19

- 20163

3 Civil Procedure 41(a)(2) rather than a notice of dismissal under Federal Rule of Civil Procedure 41(a)(1). However, it appears that the district court found that the case should be dismissed with prejudice under the “two

- dismissal”
rule of Ru le 41(a)(1)(B) , which does not apply to motions pursuant to Rule 41(a)(2). See F ED

. R. C IV

. P. 41(a)(2); Am. Cyanamid Co. v. McGhee , 317 F.2d 295, 297

- 98 (5th Cir. 1963). While Rule 41(a)(2) gives the district court the
discretion to convert a motion to dismiss without prejudice to a dismissal with prejudice, the dismissal may not rely on Rule 41(a)(1)(B), see F ED

. R.
C IV

. P. 41(a)(2); Am. Cyanamid Co. , 317 F.2d at 297

- 98 , and the district court must allow the plaintiff the opportunity to retract his motion and to reject the condition of dismissal with prejudice, see Bell v. Keystone RV Co. , 628 F.3d 157, 163 n.4 (5th Cir. 2010).
Accordingly, t he district court wrongly dismissed the case with prejudice by treat ing Thunderhorse’s pleading as arising under Rule 41 (a)(1)

or incorrectly appl ying the “two

- dismissal” rule to his Rule 41(a)(2) motion. His challenge to that dismissal presents a nonfriv olous issue for appeal. See
Howard , 707 F.2d at 220. The record supports that he is financially eligible to proceed IFP. See § 1915(a)(1); Adkins v. E.I. DuPont de Nemours & Co. , 335 U.S. 331, 339

- 40 (1948).
Thus, Thunderhorse’s motion to proceed IFP is **GRANTED**

. See Baugh , 117 F.3d at 202. Because the merits of the appeal are inextricably intertwined with the district court’s certification decision, the judgment dismissing Thunderhorse’s complaint with prejudice is **VACATED**

. See id

. We **DISPENSE** with a dditional briefing and **REMAND** the case to the district court for further proceedings. Case: 19-20163 Document: 00515523418 Page: 3 Date Filed: 08/11/2020