FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEON L. MEYERS, 

Plaintiff-Appellant, 

 v. 

EDWARD M. BIRDSONG, Dr.; R. 

MACK; P. LAHEY, RN; A. 

REYNOSO, 

Defendants-Appellees.

No. 17-16907 

D.C. No. 3:14-cv03123-RS 

ORDER

Appeal from the United States District Court

for the Northern District of California

Richard Seeborg, Chief District Judge, Presiding

Argued and Submitted September 15, 2023

San Francisco, California

Filed October 11, 2023

Before: Danny J. Boggs,* Sidney R. Thomas, and Danielle 

J. Forrest, Circuit Judges.

* The Honorable Danny J. Boggs, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 MEYERS V. BIRDSONG

SUMMARY**

Prisoner Civil Rights/In Forma Pauperis Status

The panel denied California state prisoner Leon Meyers’ 

motion to recall the mandate and reinstate his 2017 appeal 

but directed the Clerk of the District Court to refund Meyers’ 

filing fees for this appeal.

In 2017, this Court granted Meyers’ motion to proceed 

in forma pauperis (“IFP”) on appeal but subsequently, on 

defendants’ motion, revoked IFP authorization because 

under 28 U.S.C. § 1915(g), Meyers previously had more 

than three actions or appeals dismissed as frivolous or for 

failure to state a claim. Meyers did not elect to pay the filing 

fee in full at that time and the appeal was dismissed in 

January 2019. Meyers’ prison trust account, however, 

continued to be debited pursuant to 28 U.S.C. § 1915(b)(2) 

to satisfy the outstanding balance on the initial filing fee. In 

2020, the filing fee was paid in full, and Meyers sought to 

reinstate his appeal.

The panel first determined that Meyers’ motion to recall 

the mandate, filed 661 days after the mandate became 

effective, was untimely. The panel next held that the 

extraordinary remedy of recalling the mandate and ordering 

reinstatement to prevent injustice or address exceptional 

circumstances was not necessary given that Meyers did not 

dispute that he had three strikes, was ineligible to proceed 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
MEYERS V. BIRDSONG 3 

IFP under § 1915(b)’s payment plan, and had not timely paid 

the filing fee. The appeal therefore was properly dismissed. 

The panel held that § 1915 neither permits nor requires 

the collection of fees from a prisoner who is ineligible for 

IFP status because he has struck out under 

§1915(g). Meyers’ purported IFP appeal therefore was 

barred by 1915(g) and the Court was without authority to 

collect the filing fees from Meyers’ prison account. The 

panel directed the Clerk of the District Court to return to 

Meyers any fees that it collected on behalf of this court for 

this appeal.

COUNSEL

Sheridan Caldwell (argued), Latham & Watkins LLP, San 

Francisco, California, for Plaintiff-Appellant. 

Nicole H. Welindt (argued), Associate Deputy Solicitor 

General; Neah Huynh, Supervising Deputy Attorney 

General; California Attorney General’s Office, San 

Francisco, California; Helen H. Hong, Attorney, California 

Attorney General’s Office, San Diego, California; Alicia A.

Bower, Deputy Attorney General, California Attorney 

General’s Office, Business & Tax Section, Sacramento, 

California; for Defendants-Appellees.
4 MEYERS V. BIRDSONG

ORDER

Leon Meyers, a California state prisoner, moves to recall 

the mandate and reinstate his 2017 appeal of the dismissal of 

his civil rights action against state agencies and Salinas 

Valley Prison medical staff and officials. We deny the 

motion to reinstate the appeal, but direct that his filing fees 

be refunded.

Meyers appealed the dismissal of his § 1983 action to 

this Court in 2017, and we granted his motion to proceed in 

forma pauperis (IFP). After Meyers filed an informal 

opening brief, Appellees moved to revoke IFP authorization 

on the grounds that Meyers was ineligible for IFP status 

under 28 U.S.C. § 1915(g) because he had previously had 

more than three actions or appeals dismissed as frivolous or 

for failure to state a claim. A motions panel granted that 

request, ordered Meyers to pay the full $505 filing fee within 

35 days, and warned that a failure to pay the fee in full would 

cause the appeal to be dismissed. The order also noted that 

the Court would not entertain any motions to reinstate the 

appeal “not accompanied by proof of payment of the 

docketing and filing fees.” Meyers did not pay the filing fee, 

and the appeal was dismissed in January 2019. Meanwhile, 

Meyers’s prison trust account continued to be debited 

pursuant to § 1915(b)(2) to satisfy the outstanding balance 

on the initial filing fee.

In November 2020, Meyers brought the instant motion 

to reinstate his appeal and attached a prison bank account 

statement showing the filing fee had been paid in full as of 

October 2020. We appointed counsel for Meyers and 

directed the parties to brief “the effect, if any, of the 

revocation of a prisoner’s in forma pauperis status pursuant 

to 28 U.S.C. § 1915(g) upon the collection of fees for the 
MEYERS V. BIRDSONG 5

same case from the prisoner’s trust account pursuant to 28 

U.S.C. § 1915(b).”

I

Pursuant to Ninth Circuit Rule 42-1, an appeal may be 

dismissed when “an appellant fails to file a timely record, 

pay the docket fee, file a timely brief, or otherwise comply 

with the rules requiring processing the appeal for hearing.” 

Motions for reinstatement of an appeal following dismissal 

for failure to prosecute are directed to the sound discretion 

of the Court. In exercising our discretion, we generally 

consider: (1) the reason for the failure to prosecute; (2) the 

timeliness of the motion (and an explanation for 

untimeliness, if appropriate); (3) whether the defect has been 

cured, see Ninth Circuit General Order 2.4 (“Any motion to 

reinstate an appeal dismissed for want of prosecution shall 

indicate how the deficiency has been corrected or explain 

why correction is impossible.”); and (4) whether the motion 

is opposed. 

Our authority to recall a mandate and reinstate an appeal 

stems from our inherent “power to protect the integrity of 

[our] own processes.” Zipfel v. Halliburton Co., 861 F.2d 

565, 567 (9th Cir. 1988). We may exercise that authority “in 

exceptional circumstances,” “for good cause or to prevent 

injustice.” Id. (internal citation and quotation marks 

omitted). 

Meyers’s motion is untimely. See United States v. 

Lozoya, 19 F.4th 1217, 1218 (9th Cir. 2021) (en banc) 

(holding that a motion to recall the mandate filed over 300 

days after the filing of the opinion was untimely). This 

mandate became effective January 25, 2019, and the motion 

to recall the mandate was filed on November 16, 2020, 661 

days after the mandate became effective.
6 MEYERS V. BIRDSONG

More importantly, the circumstances here do not present 

exceptional circumstances, “good cause,” or the need to 

intervene in order “to prevent injustice.” Meyers does not 

dispute that he has three strikes and is therefore ineligible to 

proceed IFP under the 28 U.S.C. § 1915(b) payment plan. 

Accordingly, Meyers may only appeal a civil judgment if he 

can prepay the filing fee, which he was not able to do. 

§ 1915(g). Because Meyers did not timely pay his fees, the 

correct result was dismissal, see Ninth Cir. R. 3-1, 42-1, and 

the extraordinary remedy of recalling the mandate and 

ordering reinstatement of the appeal is therefore not 

necessary to prevent injustice or address exceptional 

circumstances.

II

Meyers argues, in the alternative, that his filing fees were 

unlawfully collected because § 1915 does not authorize or 

require the collection of filing fees from a prisoner who 

attempts to file an appeal IFP but is denied IFP status. This 

claim presents a novel question of statutory interpretation in 

this Circuit, so we begin by presenting some statutory 

background.

As part of an effort to reduce the number of frivolous 

prisoner-filed lawsuits, the Prison Litigation Reform Act of 

1995 (“PLRA”) overhauled the in forma pauperis system for 

prisoner litigants. 28 U.S.C. § 1915; see Jackson v. Stinnett, 

102 F.3d 132, 136–37 (5th Cir. 1996). Indigent prisoners 

have long been eligible to proceed IFP and avoid the 

prepayment of filing fees upon court approval. See § 1915 

(a). But the PLRA added new requirements for prisoner IFP 

eligibility. First, under § 1915(b)(1), “if a prisoner brings a 

civil action or files an appeal in forma pauperis, the prisoner 

shall be required to pay the full amount of a filing fee” via a 
MEYERS V. BIRDSONG 7

specified payment plan that automatically deducts available 

funds from the prisoner’s prison bank account. Additionally, 

§ 1915(g) renders some serial prisoner litigants ineligible for 

IFP status altogether. Under subsection (g), a prisoner who 

has had three or more suits dismissed as frivolous or 

malicious, or for failure to state a claim—known as having 

“three strikes”—may not proceed IFP unless the prisoner 

faces “imminent danger.” See Williams v. Paramo, 775 F.3d 

1182, 1188 (9th Cir. 2015). 

The parties dispute whether § 1915 mandates the 

collection of fees where a prisoner files an appeal and is 

granted IFP status, but IFP status is later revoked. Meyers 

argues that because he does not qualify for IFP status under 

§ 1915(g), he cannot be subjected to the IFP fee payment 

scheme in § 1915(b). Appellees argue that we may not 

refund Meyers’s fees because the obligation under 

§ 1915(b)(1) to pay the full fee attached as soon as Meyers 

filed his appeal, whether he qualified for IFP status or not.

In statutory interpretation, the “plain meaning of a statute 

controls where that meaning is unambiguous.” Khatib v. 

County of Orange, 639 F.3d 898, 902 (9th Cir. 2011) (en 

banc); see Harris v. Harris, 935 F.3d 670, 676 (9th Cir. 

2019) (noting Congress “said what it meant” in § 1915(g)). 

We read “words in their context and with a view to their 

place in the overall statutory scheme.” Tovar v. Sessions, 

882 F.3d 895, 901 (9th Cir. 2018) (quoting King v. Burwell, 

576 U.S. 473, 486 (2015)). “[W]e do not look at individual 

subsections in isolation.” Id. Applying these rules, § 1915 

does not authorize or require the collection of fees from a 

prisoner who is ineligible for IFP status under subsection (g). 

The requirement in subsection (b) that a prisoner pay the full 

filing fee only applies “if a prisoner . . . files an appeal in 

forma pauperis.” § 1915(b)(1) (emphasis added). And 
8 MEYERS V. BIRDSONG

under subsection (g), a struck-out prisoner can never file an 

appeal IFP. § 1915(g); see Williams, 775 F.3d at 1189 

(holding that “§ 1915(g), by using the present tense, clearly 

refers to the time when the . . . appeal is filed”); see also 

Dubuc v. Johnson, 314 F.3d 1205, 1207 (10th Cir. 2003) 

(“Whether viewed from the so-called plain language 

perspective or more broadly to determine Congress’ intent, 

§ 1915(g)’s mandate is that ‘in no event’ shall a post-threestrikes civil action be brought.”); Smith v. Dist. of Columbia, 

182 F.3d 25, 29 (D.C. Cir. 1999) (“[W]e will not treat [a 

prisoner] as having ‘filed an appeal in forma pauperis’ when 

he has not been granted in forma pauperis status and his 

appeal has not been considered.”).

Therefore, § 1915(b) neither permits nor requires the 

collection of fees from a struck-out prisoner who attempts to 

file an appeal IFP. A struck-out prisoner who has been 

denied IFP has the option of timely filing the full fee or 

electing not to proceed with the appeal. We join the D.C. 

Circuit in holding that a struck-out plaintiff who has been 

denied IFP status is not deemed to have “‘filed an appeal in 

forma pauperis’ when he has not been granted in forma 

pauperis status and his appeal has not been considered.” 

Smith, 182 F.3d at 29. 

This interpretation fulfills the statutory purpose of the 

PLRA without creating a needlessly punitive rule. Section 

1915(g) was “designed to discourage vexatious and 

voluminous prisoner litigation.” Harris, 935 F.3d at 673. 

We have repeatedly recognized this purpose but have also 

announced a reluctance to extend the PLRA’s burdens on 

prisoner litigants farther than the text makes necessary. See 

Williams, 775 F.3d at 1189. While Appellees’ interpretation 

of § 1915 would certainly serve as a greater deterrent to 

prisoner litigation by requiring even struck-out prisoners to 
MEYERS V. BIRDSONG 9

pay all fees, Meyers’s version also adequately serves the 

statute’s purpose because it still prevents struck-out prisoner 

litigants from reaching the courts unless they can pay the 

filing fee in one lump sum. There is no reason under the text 

of the statute to punitively require such litigants to pay the 

fees for appeals that were dismissed for failure to pay the 

fees.

Meyers’s purported IFP appeal was barred by subsection 

(g) and therefore could not proceed to the benefits and the 

burdens conferred at subsection (b). The Court was 

therefore without authority to collect the filing fees from 

Meyers’s prison account, and they must be returned. 

Therefore, we direct the Clerk of the District Court to return 

any fees that it collected on our behalf for this appeal.

MOTION DENIED WITH INSTRUCTIONS.