UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SMITH, ALVIN DARRELL

v.

DC


97-7232a

D.C. Cir. 1999


*	*	*


Sentelle, Circuit Judge: Pursuant to the "three-strikes"  provision of
the Prison Litigation Reform Act ("PLRA"), 28  U.S.C. s 1915(g), the
district court denied appellant Alvin  Darrell Smith's application to
proceed in forma pauperis in  his civil suit against prison officials,
and dismissed his com- plaint without prejudice to his bringing a paid
complaint.  Smith appeals the district court's order, and seeks to
proceed  in forma pauperis on appeal. We conclude that he is not 
entitled to in forma pauperis status in this court. We also  conclude
that our denial of in forma pauperis status does not  make Smith
liable for fees, although he must of course pay  the required fees in
full if he wishes to proceed with his  appeal.


I. Background


Appellant Smith is a prisoner of the D.C. Department of  Corrections.
On August 14, 1997, Smith mailed a complaint  to the U.S. District
Court, bringing suit against the District  of Columbia, the D.C.
Department of Corrections, and several  correctional officers. Smith
alleged that his civil rights were  violated under 42 U.S.C. s 1983
when he was not allowed to  bring religious and educational materials
when transferred  from Lorton Correctional Complex to a facility in
Ohio.  Smith's complaint was accompanied by an application to  proceed
in forma pauperis, and a prison trust account report  for the
one-and-a-half-month period he had been at the new  facility.


On September 5, 1997, a district court judge issued an  order allowing
the provisional filing of the complaint, but  requiring Smith to
provide the court with a prison trust  account report from his
previous institution. However, on 


October 30, 1997, a second judge issued an order denying the 
application to proceed in forma pauperis on the ground that  Smith on
at least three previous occasions had brought civil  actions that were
dismissed as frivolous, malicious, or for  failure to state a claim,
so that he could not proceed in forma  pauperis under 28 U.S.C. s
1915(g). The district court cited  two cases in which Smith was
plaintiff that were dismissed for  failure to state a claim on August
29, 1997 (CA No. 97-1987  and CA No. 97-1988) and one which was
dismissed for failure  to state a claim on October 16, 1997 (CA No.
97-2485). After  denying in forma pauperis status, the order dismissed
the  complaint without prejudice to Smith's right to file a paid 


Smith filed a notice of appeal encompassing the current  action as well
as the three previously dismissed cases to  which the district court's
order referred. The appeals from  the three earlier decisions were
dismissed for lack of prosecu- tion. Nos. 97-7233, 97-7231, 97-7230
(D.C. Cir. July 23,  1998). On August 17, 1998, Smith's application to
proceed in  forma pauperis in this case was referred to this panel,
and an  amicus was appointed on Smith's behalf.


II. The Three-Strikes Determination


Because Smith has not paid the required fees in this court,  our first
question is whether he is entitled to proceed in  forma pauperis here.
The District claims that 28 U.S.C.  s 1915(g) prevents Smith from
proceeding in forma pauper- is. Under that section, prisoners with
three or more so- called "strikes" may proceed in forma pauperis only
in very  limited circumstances:


In no event shall a prisoner bring a civil action or appeal  a judgment
in a civil action or proceeding under this  section if the prisoner
has, on 3 or more prior occasions,  while incarcerated or detained in
any facility, brought an  action or appeal in a court of the United
States that was  dismissed on the grounds that it is frivolous,
malicious, or  fails to state a claim upon which relief may be


unless the prisoner is under imminent danger of serious  physical
injury.


28 U.S.C. s 1915(g). In the government's view, the three  dismissals
cited by the district court all count as "strikes"  under this
provision, since they were all for failure to state a  claim.1
However, amicus argues that none of these three  dismissals should
count as strikes. In amicus's view, this  result follows from two
propositions, both of which amicus  urges us to adopt. First, amicus
asserts that we should  recognize that the three-strikes determination
must be based  on the situation at the time an appeal or complaint is
filed,  even if, as here, the decision regarding in forma pauperis 
status is actually made some time later. Second, amicus  urges that
dismissals should not count as strikes until appeal  has been
exhausted or waived. Amicus claims that if these  two propositions are
accepted, the three cited dismissals do  not count as strikes.


However, we conclude that even assuming that we accepted  amicus's two
propositions as a general matter, each of the  three cited dismissals
here would nonetheless count as  strikes, because the time for appeal
of those dismissals had  expired when this appeal was filed. The first
two of the  dismissals in question occurred on August 29, 1997, while
the  third occurred on October 16, 1997. Under F.R.A.P. 4(a)(1),  the
notice of appeal in a civil action must be filed within 30  days of
the challenged order or judgment. A notice of appeal  by an inmate is
treated as timely if it is deposited in the  institution's internal
mail system on or before the last day for  filing. F.R.A.P. 4(c)(1).
The 30-day time limit is " 'mandato-




__________

n 1 In addition to the three dismissals cited by the district court, 
the government argues that two other dismissals, both prior to the 
enactment of the Prison Litigation Reform Act, should count as 
strikes. Furthermore, our own examination reveals that Smith has 
actually been the plaintiff in a total of seventeen civil actions
while  incarcerated. Because we conclude that the three dismissals
cited  by the district court all count as strikes under s 1915(g) for
the  purposes of this appeal, we need not decide whether Smith has 
other strikes as well.


ry and jurisdictional.' " Browder v. Director, Dep't of Correc- tions
of Illinois, 434 U.S. 257, 264 (1978) (quoting United  States v.
Robinson, 361 U.S. 220, 229 (1960)). Here, the  notice of appeal of
the three dismissals and the present case  was dated December 6, 1997,
and was received by the district  court on December 11, 1997. Amicus
argues that we cannot  determine whether the appeals from the three
earlier dis- missals were timely because it is not apparent from the 
record on what date Smith mailed the notice of appeal. But  even if it
is unclear precisely when the notice of appeal was  placed in the
mail, it is clear that it could not have been  before December 6, the
date Smith completed the notice.  Amicus also points out that the
record "does not indicate  whether" any motions were filed which would
have tolled the  time for filing a notice of appeal under F.R.A.P.
4(a)(4).  Amicus Br. at 12 n.3. But given that the docket contains no 
mention of any such motions, it is not clear what other  "indication"
amicus would want. Thus December 6 is the  earliest possible effective
date of filing, which places Smith's  attempted appeals of the three
earlier dismissals well outside  the 30-day period provided by




__________

n 2 It may well be that Smith's appeal in this case was also  untimely.
However, because we determine that Smith is not enti- tled to proceed
in forma pauperis, we do not actually reach this  issue. Although Rule
4's timeliness requirements are jurisdictional,  determination of in
forma pauperis status is in a sense logically  antecedent to the
timeliness determination--an appellant who has  neither paid the full
fees required nor been granted in forma  pauperis status is not
entitled to have this court consider his appeal  at all, even to note
untimeliness. We do not decide whether in  forma pauperis status is
itself a jurisdictional issue. But see  Garcia v. Silbert, 141 F.3d
1415, 1417 n.1 (10th Cir. 1998) (stating  that s 1915(g) is not
jurisdictional and electing to reach merits  although s 1915(g)
precluded appellant from proceeding without fee  payment); Jackson v.
Stinnett, 102 F.3d 132, 136 (5th Cir. 1996)  ("[T]here is no
indication that Congress meant the new i.f.p. re- quirements to be
jurisdictional."). However, we do conclude that  satisfaction of this
court's fee requirements, either by full payment  or by a grant of in
forma pauperis status and submission of the  initial partial payment
required by s 1915(b), is an administrative 


Despite the fact that Smith did not appeal the three  dismissals at
issue within the time period provided by  F.R.A.P. 4(a), amicus urges
that the dismissals should not  count as strikes given that Smith
filed notices of appeal of  those dismissals at the same time he filed
his notice of appeal  in this case. In amicus's view, those dismissals
should not  count as strikes because their appeal was "pending" when
the  present appeal was filed. In other words, amicus would have  us
allow a prisoner to convert what would otherwise have  been a strike
into a non-strike by filing an untimely notice of  appeal. Clearly, to
accept this argument would provide an  avenue for prisoners to
effectively circumvent the three- strikes provision. A prisoner barred
from proceeding in  forma pauperis by the existence of previous
strikes could  avoid the intended consequences of s 1915(g) by filing
un- timely appeals of the dismissals constituting strikes. Amicus 
offers no statutory justification for this view, and we decline  to
adopt it. Even if district court dismissals do not count as  strikes
while appeal is available, once the time for appeal has  expired, that
is the end of the matter, and untimely attempts  to appeal do not
change the situation. At the time this appeal  was filed, Smith had at
least three previous dismissals in the  district court for failure to
state a claim, and the time for  appeal of those dismissals had
expired. It is of no import  that the appeals of the three dismissals
at issue were actually  dismissed for nonprosecution rather than
untimeliness. The  district court dismissals should not fail to count
as strikes  simply because the untimely appeals of those dismissals
suf- fered from other flaws as well. Thus even if amicus is correct 
that we must assess the situation at the time of filing, and  that
strikes do not count as long as appeal is available, these 


III. Liability for Fees


Having concluded that Smith is not entitled to proceed in  forma
pauperis, we face the question of whether he now 




__________

n hurdle that we may properly require an appellant to clear before 
considering even our jurisdiction to actually hear the appeal.


becomes liable for the full filing and docketing fees, or  whether he
need only pay the fees if he seeks to proceed with  his appeal. Under
the PLRA, a prisoner allowed to proceed  in forma pauperis no longer
escapes liability for fees. He is  simply permitted to pay the fees in
installments rather than  in a single payment. 28 U.S.C. s 1915(b).
Smith, however,  is not being allowed to proceed in forma pauperis.
Thus, he  must pay the full fees in advance if he wishes to pursue his
 appeal. But must he also pay the full fees even if he does not 
pursue his appeal?


Section 1915(b)(1) provides that "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." 28 U.S.C.  s 1915(a)(3). Thus
the question is whether when a prisoner  files a notice of appeal and
application to proceed in forma  pauperis, and his application is
denied, we will treat him as  having "file[d] an appeal in forma
pauperis" so that the fee  requirement attaches. Id. Although some
courts have re- quired prisoners to pay the full filing fee whenever
their in  forma pauperis application is denied, see Newlin v. Helman, 
123 F.3d 429, 434 (7th Cir. 1997); Henderson v. Norris, 129  F.3d 481,
483 (8th Cir. 1997); Leonard v. Lacy, 88 F.3d 181,  184 (2d Cir.
1996), it has not been our practice to do so. For  example, in Wooten
v. District of Columbia Metropolitan  Police Department, 129 F.3d 206
(D.C. Cir. 1997), we consid- ered a prisoner's attempt to proceed in
forma pauperis on  appeal after the District Court had certified that
the appeal  was not taken in good faith. We agreed that the appeal was
 not in good faith and therefore that Wooten could not proceed  in
forma pauperis under 28 U.S.C. s 1915(a)(3). But we did  not then
require him to pay the fees, instead noting that he  could choose to
pay the $105 fees and pursue his appeal, or  that if he did not pay
within 14 days, his appeal would be  dismissed. Indeed, given what we
perceived as the appeal's  apparent lack of merit, we suggested that
it would be "fool- ish" for Wooten to pay the fees and proceed.
Wooten, 129  F.3d at 208. See also In re Smith, 114 F.3d 1247 (D.C.
Cir.  1997). Similarly, several other circuits appear to follow the 
practice of denying in forma pauperis status without requir-


ing fee payment. See, e.g., Rodriguez v. Cook, 169 F.3d 1176,  1182
(9th Cir. 1999); Banos v. O'Guin, 144 F.3d 883, 885 (5th  Cir. 1998);
Keener v. Pennsylvania Bd. of Probation &  Parole, 128 F.3d 143, 145
(3d Cir. 1997).


In accordance with our past practice, we will not require  fee payment
here, unless Smith wishes to proceed with his  appeal. Section
1915(b)(1) imposes fee liability when "a  prisoner brings a civil
action or files an appeal in forma  pauperis." 28 U.S.C. s 1915(b)(1).
This wording differs  significantly from that of subsection
1915(a)(2), which re- quires a prisoner to file an affidavit of
poverty and certified  copy of his prison trust fund account whenever
"seeking to  bring a civil action or appeal a judgment in a civil
action" in  forma pauperis. Id. s 1915(a)(2) (emphasis added). While 
Smith is clearly seeking to proceed in forma pauperis, we will  not
treat him 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.3 For the present pur- pose, we will deem a prisoner to
have "file[d] an appeal in  forma pauperis" as soon as he has both
filed a notice of  appeal and been granted in forma pauperis status,


Although requiring prisoners denied in forma pauperis  status to pay
the full fees even though their appeal is not  considered would
arguably provide an additional deterrent to  prisoner filings, our
disposition here can hardly be viewed as  encouraging prisoner
appeals. Unless he pays the required  fees, Smith's appeal will be
dismissed. In addition, our  conclusion that Smith has three strikes
will allow summary  treatment of any future applications for in forma
pauperis  status. In our view, requiring prisoners to pay the full
fees  in such situations would create either administrative difficulty
 or an incentive for the prisoners to continue to pursue their 
appeals. If a prisoner did not have sufficient funds to pay the  fees,
requiring immediate payment in full would result pri-




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n 3 He will, however, have filed a notice of appeal, so that our 
conclusion has no implications for when the appeal is filed for 
purposes of F.R.A.P. 4.


marily in an ongoing collection effort for the office of the  clerk of
this Court. If, on the other hand, a prisoner was able  to pay the
fees in full, our requiring him to do so whether or  not he proceeded
with his appeal would leave him no disincen- tive to proceeding--if
the prisoner would be responsible for  the full fees in any case, it
would only make sense for him to  continue to pursue his appeal. In
contrast, by imposing the  fees only if a prisoner who has been denied
in forma pauper- is status proceeds further, our approach should give
such a  prisoner every incentive to consider carefully whether his 
appeal warrants further pursuit.


IV. Conclusion


Because Smith had three strikes at the time he filed this  appeal, we
deny his application to proceed in forma pauperis  pursuant to 28
U.S.C. s 1915(g). If he pays the filing fee  within fourteen days of
receiving the court's opinion and  order, then his appeal may proceed.
If not, then it will be  dismissed. See Wooten, 129 F.3d at 208.