Thurman v. Gramley

97 F.3d 185, 1996 WL 536952
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 23, 1996
DocketNos. 96-1062, 96-2109, 96-2405, 96-2685 and 96-3096
StatusPublished
Cited by68 cases

This text of 97 F.3d 185 (Thurman v. Gramley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thurman v. Gramley, 97 F.3d 185, 1996 WL 536952 (7th Cir. 1996).

Opinion

EASTERBROOK, Circuit Judge.

We have consolidated for decision five cases that present questions under the Prison Litigation Reform Act, Title VIII of Pub.L. 104-134, 110 Stat. 1321 (effective April 26, 1996) (“the Act”). Together with Martin v. United States, 96 F.3d 853 (7th Cir.1996), and Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996), this opinion resolves most of the pressing questions this court has encountered in beginning to implement the Act.

1. Douglas Jackson, a federal prisoner, filed in the Southern District of Indiana an action under 28 U.S.C. § 2241 challenging his conviction. He named as respondent the warden of his prison. The district court promptly dismissed the action for lack of jurisdiction, observing that 28 U.S.C. § 2255 requires a collateral attack on a federal conviction or sentence to be pursued in the district of conviction (for Jackson, the Northern District of Illinois) rather than in the district of custody. The initial question is whether a petition under § 2241 is a [187]*187“civil action” to which the Act applies. For the reasons Martin gave in holding that petitions under §§ 2254 and 2255 are not, we hold that a petition under § 2241 challenging one’s sentence likewise is outside the Act. It is functionally a stage in the criminal proceeding; indeed, this petition is simply a § 2255 action in the wrong venue. A proper § 2241 action, concerning conditions of confinement, a deprivation of good time credits, or other matters that occur at the prison, by contrast, would not be a continuation of the criminal case, and it would be subject to the Act.

Jackson’s mislabeled action falls outside the Act, but it need not linger on our docket. As the district judge held, Jackson must pursue an action under § 2255 in the Northern District of Illinois. Jackson’s assertion that he has already filed a § 2255 petition in the Northern District, without obtaining relief, does not entitle him to move to another district and litigate anew. The judgment dismissing his petition is affirmed. Any additional request for relief under § 2255 requires the prior approval of this court under §§ 105 and 106(b)(3) of the Anti-terrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214, amending 28 U.S.C. §§ 2244(b) and 2255. See Felker v. Turpin, — U.S. -, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Nunez v. United States, 96 F.3d 990 (7th Cir.1996); Roldan v. United States, 96 F.3d 1013 (7th Cir.1996).

2. Our opinion in Martin likewise answers the question presented by Walker v. Perre, No. 96-2685. The district court entered judgment in this § 1983 action on March 22, 1996. Walker’s notice of appeal, dated June 30, reached the district court clerk’s office on July 3. The appeal is juris-dictionally untimely. Should we simply dismiss the appeal for want of jurisdiction, or must we first assess the full filing and docketing fees against Walker? Martin holds that under the Act the appellate fees must be assessed and paid even if the appeal is frivolous; just so, we now hold, if the appeal is untimely. A solvent litigant must pay the filing and docketing fees for the privilege of initiating an appeal; dismissal on jurisdictional grounds does not lead the court to refund the appellant’s money. Under 28 U.S.C. § 1915(b)(1), as amended by the Act, “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.” The impecunious prisoner is entitled to pay in installments, but the fee must eventually be paid in full. So we will assess and collect the $105 fees — but the appeal is dismissed for want of jurisdiction.

3. In Brown v. Feldkamp, No. 96-2405, a Bivens action filed by a federal prisoner, the notice of appeal was dated May 29, 1996, and was received by the district court clerk on June 3. Both dates are after April 26, and the fee-assessment provisions of the Act therefore apply. The district court permitted Brown to proceed in forma pauperis under the former law, and that status carried over automatically on appeal because the court did not certify that the appeal is frivolous or otherwise improper. (The district court’s authority to revoke IFP status for appeal, formerly in § 1915(a), was moved to § 1915(a)(3) by the Act.)

Covino v. Reopel, 89 F.3d 105 (2d Cir.1996), holds that carryover IFP status does not affect the obligation to pay appellate fees, and we agree with this holding. 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.” (Emphasis added.) The dispositive events are “bringing” a civil action and “filing” an appeal. See Abdul-Wadood, 91 F.3d at 1025. Brown filed his appeal after April 26. He therefore must supply this court with “a certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-month period immediately preceding the filing of the ... notice of appeal”, § 1915(a)(2), if he wants to pursue the appeal (and we will dismiss the appeal for failure to prosecute if Brown does not comply with this requirement) — but whether he provides this statement or not, the fees will be assessed.

The clerk of the district court will instruct Brown’s prison to remit the appellate fees from his trust account if $105 is [188]*188available, and otherwise to send 20 percent of the current balance (or the average balance during the last six months, if higher), plus the monthly installments specified in the amended § 1915(b)(2). Brown should ensure that the prison officials transmit the necessary funds, and that if he moves to a new prison the obligation moves with him. Now that payment of the filing fees is obligatory, we will take nonpayment (for any reason other than destitution) as a voluntary relinquishment of the right to file future suits in forma pauperis — -just as if the prisoner had a history of frivolous litigation, and § 1915(g) required prepayment. See Abdul-Wadood; cf. Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir.1995); Sassower v. ABA 33 F.3d 733 (7th Cir.1994). The clerk of the district court should keep tabs of the payment history when fees are assessed, and pass information about nonpayment to the clerk of this court so that judges throughout the circuit may be informed and respond appropriately.

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Bluebook (online)
97 F.3d 185, 1996 WL 536952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurman-v-gramley-ca7-1996.