Morrow v. Collins

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 22, 1997
• Docket: 96-10824
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-10824 Conference Calendar

RICHARD C. MORROW,

Plaintiff-Appellant,

versus

JAMES A. COLLINS, ET AL., Defendants,

RICHARD THALER, Warden of TDCJ Ramsey Unit, ET AL.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 5:94-CV-281 - - - - - - - - - - March 19, 1997 Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:

Richard C. Morrow, Texas inmate #606781, moves this court

for leave to proceed on appeal in forma pauperis (IFP). On

January 9, 1997, this court ordered Morrow to file an affidavit

for leave to proceed IFP on appeal pursuant to the Prison

Litigation Reform Act of 1995 (PLRA). See Morrow v. Collins, No.

96-10824 (5th Cir. Jan 9, 1997) (one-judge order). The order

held Morrow’s appeal in abeyance for 30 days pending payment of No. 96-10824 - 2 -

the $105 filing fee or submittal of the required documents

pursuant to the PLRA. Morrow received notice that failure to

comply with the order would result in the dismissal of his appeal

for want of prosecution. Id.

Morrow’s IFP motion, filed within the 30-day period, does

not comply with the PLRA because Morrow has not attached a

certified statement of his prison trust account. Morrow asserts

that he attempted to acquire the certified statement on January

27, 1997, but due to the history of hostility Texas Department of

Criminal Justice (TDCJ) officials have toward inmate litigants,

he is unable to provide the required document. We take judicial

notice of the recently established TDCJ procedures* whereby an

inmate may obtain the certified statement of the inmate trust

account. The notarized Trust Fund Balance Inquiry Screen, the

document created by following the procedures for records release

information, is sufficient to comply with the PLRA’s requirement

of a certified statement of the prison trust account. In light

of the relative speed by which Morrow could obtain the document,

his assertion of inability is insufficient to comply with this

court’s January 9 order.

Accordingly, Morrow’s motion for leave to proceed IFP on

appeal is DENIED, and his appeal is dismissed for want of

prosecution. See 5th Cir. R. 42.3. Should Morrow wish to

* To inform the bench, bar, and public of these procedures, the notice to inmates given by TDCJ is reprinted as the appendix. No. 96-10824 - 3 -

reinstate his appeal, he is instructed to pay the $105 filing fee

to the clerk of the district court within 30 days.

IFP MOTION DENIED. APPEAL DISMISSED.

APPENDIX

NOTICE TO OFFENDERS

PRISONER’S LITIGATION REFORM ACT -- TITLE 28 U.S.C. § 1915

Effective December 1, 1996, procedures for requesting and

receiving trust fund account information for filing an In Forma

Pauperis Affidavit in any Federal District Court within the State

of Texas, or for other valid legal purposes, are as follow:

RECORDS RELEASE INFORMATION:

1. The offender obtains a Records Release Authorization

(ATC-Authorization No. 1) from the law library. The

offender completes all information and signs and dates

the Authorization in the presence of the approved

witnessing authority (Access to Courts Representative).

2. The witnessing authority identifies the offender by ID

card or records and, upon verification, witnesses the

offender’s signature by signing the Records Release

Authorization, which the witnessing authority will

maintain.

3. The witnessing authority prints out a copy of the

offender’s trust fund balance which the witnessing

authority certifies. The certified copy is then No. 96-10824 - 4 -

provided to the offender.

4. The offender is required to have an addressed, stamped

envelope prepared for mailing. The certified trust

fund information and other relevant court documents are

immediately placed in the addressed and stamped

envelope and the envelope is sealed and placed in the

outgoing mail.

Note: Trust fund information is for legal/court purposes

ONLY. Any other inquiries or questions regarding trust fund

information, balances, deposits, withdrawals, etc. are to be

submitted to TDCJ Offender Trust Fund Department.

Upon receipt of the offender’s trust fund account

information, the Federal Court will review the submitted

information and determine the amount of the offender’s “INITIAL

PARTIAL FILING FEE”. The offender will be notified of the

assessed amount by Court Order.

PAYMENT AUTHORIZATION:

1. Upon receipt of the Court’s “Initial Partial Filing Fee

Order” the offender obtains a Payment Authorization

(ATC Authorization No. 2) from the law library. The

offender completes, signs and dates the Authorization

in the presence of the approved witnessing authority

(Access to Courts Representative).

2. The approved witnessing authority identifies the

offender by ID card or records. No. 96-10824 - 5 -

3. Upon verification, the witnessing authority signs the

Payment Authorization and the witnessing authority

forwards the completed authorization to TDCJ Offender

Trust Fund.