FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 21, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12186

Non-Argument Calendar

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D. C. Docket No. 05-00117-CV-CAM-1

GENE SMITH, 

Plaintiff-Appellant, 

versus 

GEORGIA BOARD OF PARDONS AND PAROLES, 

Defendant-Appellee. 

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Appeal from the United States District Court

for the Northern District of Georgia

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(December 21, 2005)

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
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Georgia prisoner Gene Smith, proceeding pro se, appeals the 28 U.S.C.

§ 1915A dismissal of his 42 U.S.C. § 1983 complaint against the Georgia Board of

Pardons and Paroles. Smith’s complaint alleged an Ex Post Facto Clause violation

because the Board’s application of an amended parole reconsideration rule, Ga.

Comp. R. & Regs. 475-3-.05 (2001), changed the frequency of parole hearings

from one year to eight years. Smith also appeals the district court’s imposition of a

filing fee after it granted him in forma pauperis (IFP) status. We affirm in part,

and vacate and remand in part.

I. DISCUSSION

A. Dismissal of Complaint

In his complaint, Smith alleged generally that application of the eight-year

set-off rule violated the Ex Post Facto clause. He did not allege facts specific to

his case to support this allegation. 

On appeal, Smith asserts current application of the eight-year set-off rule

produces a sufficient risk his sentence will be longer than it would be if the Board

reconsidered him for parole more frequently. Smith contends his bad health and

age, currently 60 years, may lead him to expire in prison before the next scheduled

hearing. He further contends the eight-year set-off prevents the Board from

reviewing his institutional conduct, achievements, letters of support, or any new
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information, and points out the likelihood of parole changes year to year. He

asserts he was given a life sentence with the possibility of parole and was not

sentenced to life without parole or to death, but if he must wait eight years for

reconsideration, his sentence will be equivalent to those sentences and his

punishment more severe. 

The Prison Litigation Reform Act (PLRA) provides “[t]he court shall

review, before docketing, if feasible or, in any event, as soon as practicable after

docketing, a complaint in a civil action in which a prisoner seeks redress from a

governmental entity or officer or employee of a governmental entity.” 28 U.S.C.

§ 1915A(a). “On review, the court shall identify cognizable claims or dismiss the

complaint, or any portion of the complaint, if the complaint—(1) is frivolous,

malicious, or fails to state a claim upon which relief may be granted . . . .” 28

U.S.C. § 1915A(b). 

An action is considered “frivolous if it is without arguable merit either in

law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). Whereas a

complaint fails to state a claim when “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.” 

Flint v. ABB, Inc., 337 F.3d 1326, 1328–29 (11th Cir. 2003).
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To violate the Ex Post Facto Clause, the application of an amended statute

must inflict a greater punishment than the law annexed to the crime when

committed. Lynce v. Mathis, 117 S. Ct. 891, 895 (1997). The issue is whether

application of the amended statute creates “a sufficient risk of increasing the

measure of punishment attached to the covered crimes.” Garner v. Jones, 120 S.

Ct. 1362, 1367 (2000). “[N]ot every retroactive procedural change creating a risk

of affecting an inmate’s terms or condition of confinement is prohibited.” Id.

However,

[t]he Supreme Court’s opinion in [Garner] does not

resolve the issue of whether the amendment to Rule

475-3-.05(2), in its operation, violates the Ex Post Facto

Clause when applied to inmates who had been entitled to

more frequent reconsideration hearings when they

committed their crimes. Rather, it requires the district

court to consider evidence of the general operation of the

Georgia parole system and any other evidence a prisoner

challenging the regulation may produce that the amended

parole regulation, as applied to his own sentence, created

a significant risk of increasing his punishment. Thus, it

appears that an analysis of claims that [Rule] 475-3-.05

violates the Ex Post Facto Clause when applied to

inmates who had been entitled to more frequent parole

reconsideration at the time they committed their crimes

must be made on a case-by-case basis. 

Harris v. Hammonds, 217 F.3d 1346, 1350 (11th Cir. 2000). 

The general allegation before the district court was not sufficient to require

the district court to do an individualized assessment as set out in Harris. On
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appeal, however, Smith has raised more specific allegations which may or may not

be sufficient to show a violation of the Ex Post Facto clause, but are sufficient for

an individualized inquiry into Smith’s case. “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998). Thus, we vacate and remand on this issue so Smith may have an

opportunity to file a motion to amend his complaint and add the more specific

allegations.

B. Filing Fee

Next, Smith asserts he should not have to pay the $255 filing fee because the

district court granted him permission to proceed IFP. He argues his prison records

show he has no money, and the district court made “an obvious mistake” when it

granted his motion but still directed him to pay the fee. 

“We review the interpretation of the filing fee provision of the PLRA de

novo.” Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Section 1915(b)

of the PLRA requires, inter alia, that a prisoner bringing a civil action IFP must

pay the full filing fee. 28 U.S.C. § 1915(b). “Nevertheless, the PLRA provides

that ‘[i]n no event shall a prisoner be prohibited from bringing a civil action or

appealing a civil or criminal judgment for the reason that the prisoner has no assets
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and no means by which to pay the initial partial filing fee.’ Accordingly, the

impecunious defendant, although liable for the entire fee, may pay his or her entire

fee in installments.” Wilson v. Sargent, 313 F.3d 1315, 1318 (11th Cir. 2002)

(citations omitted). The initial filing fee is computed by the district court based on

monthly averages of the prisoner’s trust account, and should the prisoner have a $0

balance in his account, then the initial filing fee is set at zero. See id. at 1319. 

Although Smith logically argues the requirement of an IFP plaintiff to pay a

court’s filing fee seems contrary, the language of the statute is plain. See 28 U.S.C.

§ 1915(b). Therefore, the district court did not err in charging the fee and in its

imposition of the partial initial filing fee and installment plan for the remainder. 

II. CONCLUSION

We affirm the district court’s imposition of the filing fee pursuant to

§ 1915(b) of the PLRA. However, we vacate the district court’s dismissal of

Smith’s complaint, and remand so Smith may be given an opportunity to file a

motion to amend his complaint adding the more specific allegations. 

AFFIRMED IN PART, VACATED AND REMANDED IN PART.