UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

A D M I N I S T R A T I V E O R D E R

The Prison Litigation Reform Act (PLRA) changed the scheme by which courts process prisoners' applications to proceed in forma pauperis (IFP) on appeal. In the three years since the passage of the PLRA, the district courts in this circuit have devised a variety of procedures and form orders to facilitate the assessment and collection of appellate filing fees. In consultation with all of the chief district court judges in this circuit and a committee of this court's judges, I have determined that courts in this circuit could use their scarce personnel resources more efficiently if the PLRA procedures for appeals were streamlined in accordance with the statute and if all of the courts in this circuit implemented a single, simplified system for processing prisoners' applications to proceed IFP on appeal. Accordingly, I am hereby issuing an administrative order under my authority as the Chief Judge until such time as panels of this court address and resolve the problems addressed herein. This administrative order applies only to prisoners' applications to proceed IFP on appeal in accordance with 28 U.S.C. § 1915.

1. CONTENT OF PRISONERS' APPLICATIONS TO PROCEED IFP ON APPEAL.

In addition to all of the information that 28 U.S.C. § 1915(a)(1) and (2) requires a prisoner to submit when applying to proceed IFP on appeal, a prisoner's IFP application shall also contain a signed copy of any consent form or authorization that the prison having custody of the applicant requires to allow it to access a prisoner's inmate trust fund account, to collect funds from the account, and to pay those funds to the clerk of the district court. The requirement to submit a consent form or authorization as a precondition to applying for IFP on appeal applies only when the prison having custody of the applicant has such a requirement under state law, regulation or internal practice.

2. SOURCE OF FUNDS FOR PAYMENT OF FEES.

After IFP is granted, all fees shall be paid solely from the prisoner's inmate trust fund account or institutional equivalent. In the rare instance where the institution having custody of the appellant has no trust fund account or equivalent, an initial fee of $0 will be assessed and the prisoner will be ordered to pay the full $105 filing fees in installments. This practice is intended to insure that a prisoner understands that he or she owes a fee for filing an appeal and to facilitate the collection of that fee in the event that the prisoner is subsequently transferred to an institution which has inmate accounts.

3. FORM OF ORDERS REGARDING PRISONERS' MOTIONS TO PROCEED IFP ON APPEAL.

All IFP orders shall provide for payment when funds are available. If a prisoner's inmate trust fund account does not contain the amount assessed as an initial partial filing fee (initial fee), the prison shall withdraw from the account any portion of the initial fee that is available, and the appeal shall proceed as if the initial fee had been paid in full. The appeal shall so proceed even if no funds exist in the trust fund account. The prisoner shall remain obligated to pay any unpaid portion of the initial fee and thereafter the remainder of the filing fees as required by 28 U.S.C. § 1915(b)(2).

A sample form for the district courts to use is appended to this order.

If the district court certifies under 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3) that an appeal is not taken in good faith, the district court shall complete the appropriate portion of the form denying IFP, but nonetheless calculate an initial fee to advise the prisoner of the cost of challenging the "no good faith" certification in accordance with Baugh v. Taylor, 117 F. 3d 197 (5th Cir. 1997). The order will tell the prisoner that should he or she challenge the district court's decertification of IFP by filing a separate motion for IFP on appeal with this court, the initial filing fee order will be sent to the prison authorities for collection.

4. EXPEDITED PROCESSING OF PRISONERS' MOTIONS TO PROCEED IFP.

The district court shall dispose of a prisoner's application to proceed IFP on appeal within 45 days of its filing. If the application does not contain: a) a properly completed application to proceed on appeal IFP; b) a certified statement of the applicant's trust fund account (or institutional equivalent); and c) if required by the prison, a signed form consenting to the collection of fees from the prison account, it shall be considered deficient. The district court shall note the deficiency and allow the prisoner 30 days in which to provide an adequate application. If the prisoner does not deposit the required material in the prison mail system within 30 days of the deficiency notice or timely move for an extension of time for good cause, the appeal shall be dismissed.

Within this court, the clerk is directed to expedite the processing of all prisoner IFP appeals. Upon docketing a prisoner's notice of appeal, the clerk shall issue the prisoner a letter allowing a period of 45 days to dismiss the appeal voluntarily, to pay the full filing fees, or to move in the district court for permission to appeal IFP. If the district court has not sooner notified this court of the prisoner's action, this court will check with the district court to determine compliance with this court's letter. If the prisoner has not timely acted, the appeal will be dismissed. As soon as notified that the prisoner has either paid the full filing fees or moved in the district court for permission to proceed IFP on appeal, the clerk shall issue a briefing notice to the prisoner-appellant. In the uncommon event that a prisoner-appellant requests access to the record on appeal in order to prepare his or her brief, the district court clerk shall, upon notice from this court, prepare, certify and transmit the existing partial record on appeal to this court within 15 days.

The district court shall promptly notify this court if a prisoner is denied permission to proceed on appeal IFP because the prisoner has sufficient funds to pay the full filing fees, the appeal is not taken in good faith or the prisoner is ineligible to proceed without prepayment of fees because of the "three-strikes" provisions of 28 U.S.C. § 1915(g). This provision does not require the district courts to conduct a new "three-strikes" review with the filing of every notice of appeal by the prisoner, if the prisoner previously has been determined to be a three-strike litigant.

Upon receipt of the prisoner-appellant's brief, and if the record on appeal has not previously been forwarded to this court, the clerk will notify the district court to promptly prepare, certify and forward the record on appeal to this court.

5. VOLUNTARY DISMISSALS.

A prisoner proceeding IFP on appeal shall become obligated to pay the full filing fees upon the filing of a notice of appeal. No relief from an order directing payment of the filing fees shall be granted for a voluntary dismissal.

6. EFFECTIVE DATE.

To allow the district courts and the prisons to modify existing procedures and forms to conform to this administrative order, the procedures set forth above shall become effective for all notices of appeal filed on or after December 1, 1999.

IT IS SO ORDERED.

Carolyn Dineen King

Chief Judge

Signed this 21^st day of September, 1999

COURT HEADING

CASE CAPTION

ORDER REGARDING MOTION TO PROCEED

IN FORMA PAUPERIS ON APPEAL

The court has considered the appellant's application for leave to proceed in forma pauperis on appeal, the certified trust fund account statement or institutional equivalent, and all consents and other documents required by the agency having custody of the appellant to withdraw funds from the account.

[ ] The application for leave to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915 is GRANTED.

[ ] (Prisoner's name) is assessed an initial partial filing fee of (Amount) ⁽¹⁾. The agency having custody of the appellant shall collect this amount from the trust fund account or institutional equivalent, when funds are available, and forward it to the clerk of the district court.

[ ] Thereafter, the appellant shall pay (Amount) , the balance of the filing fees, in periodic installments. The appellant is required to make payments of 20% of the preceding month's income credited to the appellant's prison account until appellant has paid the total filing fees of $105.00. The agency having custody of the appellant shall collect this amount from the trust fund account or institutional equivalent, when funds are available and when permitted by 28 U.S.C. § 1915(b)(2), and forward it to the district court clerk.

The clerk shall mail a copy of this order to the inmate accounting office or other person(s) or entity with responsibility for collecting and remitting to the district court interim filing payments on behalf of prisoners, as designated by the facility in which the appellant is currently or subsequently confined.

[ ] The application for leave to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915 is DENIED for the following reason(s):

[ ] The applicant is not a pauper.

[ ] The applicant has not complied with the requirements of 28 U.S.C. § 1915(a)(1) or (a)(2) or has failed to supply the consent and authorization forms required by the institution having custody of the applicant, allowing collection of fees from the inmate trust fund account or institutional equivalent.

[ ] The applicant is barred from proceeding in forma pauperis on appeal because of the "three strikes" rule of 28 U.S.C. § 1915(g).

[ ] Pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3), the court certifies that the appeal is not taken in good faith.

IF PERMISSION TO APPEAL IN FORMA PAUPERIS IS DENIED

BECAUSE THE COURT CERTIFIES THE APPEAL IS NOT TAKEN IN GOOD FAITH, COMPLETE THE SECTION BELOW.

[ ] Although this court has certified that the appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3), the applicant may challenge this finding pursuant to Baugh v. Taylor, 117 F. 3d 197 (5th Cir. 1997), by filing a separate motion to proceed IFP on appeal with the Clerk of Court, U.S. Court of Appeals for the Fifth Circuit, within 30 days of this order. The cost to file a motion to proceed on appeal with the Fifth Circuit is calculated below, and if the appellant moves to proceed on appeal IFP, the prison authorities will be directed to collect the fees as calculated in this order.

[ ] (Prisoner's name) is assessed an initial partial fee of (Amount) ⁽²⁾. The agency having custody of the prisoner shall collect this amount from the trust fund account or institutional equivalent, when funds are available, and forward it to the clerk of the district court.

[ ] Thereafter, the prisoner shall pay (Amount), the balance of the filing fees, in periodic installments. The appellant is required to make payments of 20% of the preceding month's income credited to the appellant's prison account until appellant has paid the total filing fees of $105.00. The agency having custody of the prisoner shall collect this amount from the trust fund account or institutional equivalent, when funds are available and when permitted by 28 U.S.C. § 1915(b)(2), and forward it to the clerk of the district court.

If the appellant moves to proceed on appeal IFP, the clerk shall mail a copy of this order to the inmate accounting office or other person(s) or entity with responsibility for collecting and remitting to the district court interim filing payments on behalf of prisoners, as designated by the facility in which the prisoner is currently or subsequently confined.

1. Where appropriate, the district court will enter the amount of "$0" when the prisoner does not have funds in his account.

2. See footnote 1.