Williamson v. Mark

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 1997
• Docket: 96-50818
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-50818

JERRY R. WILLIAMSON,

Plaintiff-Appellant,

versus

STEPHEN MARK, Doctor; RUSSELL HUNT, Esq.,

Defendants.

Appeal from the United States District Court for the Western District of Texas

June 5, 1997

BEFORE WIENER and PARKER, Circuit Judges, and LITTLE, District Judge.*

B Y T H E C O U R T :

ORDER

Plaintiff-Appellant, Jerry R. Williamson, a federal

prisoner, filed a motion to proceed in forma pauperis (IFP) in the

above captioned appeal. This court, by order of January 21, 1997,

instructed Williamson to comply with the Prison Litigation Reform

Act of 1995 (PLRA), either by paying our appellate filing fee of

$105 or by filing an affidavit and certified statement of his trust

* District Judge of the Western District of Louisiana, sitting by designation. fund account. Williamson complied by submitting such an affidavit

and statement.

Before an initial partial filing fee was assessed for

Williamson and payment of the balance of the filing fee ordered as

required by the PLRA, however, we decided Morgan v. Haro.2 In that

case we held that (1) a prisoner who seeks to proceed IFP on appeal

must obtain leave to do so even if he has proceeded IFP in the

district court, and (2) the financial screening and assessment

procedures of the PLRA regarding appellate filing fees are

nevertheless to be conducted by the district court.

IT IS ORDERED, therefore, that this appeal be held in

abeyance and that only the preliminary issue of Williamson’s

request to proceed IFP in this court be remanded to the district

court to permit it to rule on Williamson’s appellate IFP

application and, if granted, to order payment of the proper

appellate filing fee pursuant to 28 U.S.C. § 1915(b); this panel

retaining jurisdiction of Williamson’s appeal for all other

purposes. After such a determination is made by the district

court, it shall return the case to this court for further

proceedings by this panel.

In the event that (1) further proceedings should

eventuate, (2) this panel should ultimately determine that we have

jurisdiction over Williamson’s appeal, and (3) we should find merit

in the sole matter of substance in that appeal, i.e., Williamson’s

2 F.3d , 1997 W.L. 211799, 1997, Slip Op. 3159 (5th Cir. March 31, 1997).

2 contention that the district court’s calculation of the initial

district court filing fee payable under the PLRA upon the filing of

his original complaint was erroneous, we shall continue to retain

appellate jurisdiction but order another limited remand to the

district court for the purpose of (1) affording the district court

the opportunity to re-assess the correct district court filing fees

due from Williamson under the PLRA, and (2) allowing Williamson to

continue prosecuting his complaint, assuming that he is still

inclined to do so and that he timely remits the appropriate new

district court filing fee assessment.

IT IS FURTHER ORDERED that if Williamson thus proceeds in

district court but is ultimately dissatisfied with the final ruling

or rulings of that court and desires to prosecute his appeal

therefrom in this court, he will be permitted to do so upon his

timely filing a new notice of appeal under the same appellate

docket number as this one and without being required to remit a

second appellate filing fee.

REMANDED with instructions, and with appellate jurisdiction

retained by this panel.