William A. Dupree v. R. W. Palmer

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 07, 2002

No. 01-14726 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D.C. Docket No. 01-00638-CV-J-25

WILLIAM A. DUPREE,

Plaintiff-Appellant,

versus

R.W. PALMER, Officer sued in

his individual capacity and

official capacity,

A. A. HIGGS, Sgt., sued in his

individual capacity and

official capacity, et. al.,

Defendants-Appellees.

__________________________

Appeal from the United States District Court for the

Middle District of Florida

_________________________

(March 7, 2002)

Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

William A. Dupree, a state prisoner, appeals the district court’s order

dismissing his pro se 42 U.S.C. § 1983 civil rights complaint. The district court

dismissed Dupree’s complaint without prejudice under the three strikes provision

of 28 U.S.C. § 1915(g) without allowing him an opportunity to pay the filing fee.

We affirm.

I.

Dupree first argues that the district court abused its discretion by denying his

motion to proceed in forma pauperis and then dismissing his § 1983 civil rights

complaint under the three strikes provision of § 1915(g), without allowing him an

opportunity to arrange payment of the $150.00 filing fee. Dupree argues that since

the district court only denied his motion to proceed in forma pauperis, he should

have been allowed an opportunity to pay the filing fee in order to proceed with his

complaint.

This court reviews de novo the district court’s interpretation of the Prison

Litigation Reform Act’s (PLRA) filing fee provision. Hubbard v. Haley, 262 F.3d

1194, 1196 (11th Cir.), petition for cert. filed, (U.S. Nov. 19, 2001) (No. 01-7093).

The “three strikes rule” of the PLRA states:

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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 granted, unless the prisoner is

under imminent danger of serious physical injury.

28 U.S.C. § 1915(g) (1994).

The purpose of the PLRA is to curtail abusive prisoner litigation. Section

1915 “only allows a prisoner to file three meritless suits at the reduced rate

provided by that section.” Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th

Cir. 2001). “After the third meritless suit, the prisoner must pay the full filing fee

at the time he initiates suit.” Id.

This court has not directly addressed whether the district court must give a

prisoner an opportunity to pay the full filing fee prior to dismissing a § 1983

complaint pursuant to the three strikes provision of § 1915(g). We stated in

Vanderberg, however, that after three meritless suits, a prisoner must pay the full

filing fee at the time he initiates suit.

This court has affirmed district courts’ orders dismissing § 1983 complaints

without prejudice pursuant to § 1915 in cases that raised other issues. See Rivera

v. Allin, 144 F.3d 719, 732 (11th Cir. 1998) (holding that § 1915(g) does not

violate a prisoner’s right to access the courts, separation of powers, due process, or

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equal protection); Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999)

(noting Sixth Circuit’s holding in Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir.

1998), that § 1915(g) does not violate ex post facto laws). Further, both the Ninth

Circuit and the Sixth Circuit have affirmed district court’s orders dismissing cases

without prejudice under the three strikes provision of § 1915(g). See Shabazz v.

Campbell, 12 Fed.Appx. 329, 330 (6th Cir. 2001) (unpublished) (stating that

because prisoner’s complaint clearly satisfied the provisions of § 1915(g) at the

moment of filing, the district court had no authority to consider the merits of the

complaint); McGee v. Myers, 10 Fed.Appx. 528, 529 (9th Cir. 2001) (unpublished)

(affirming district court’s denial of prisoner’s request for in forma pauperis status

and dismissal of complaint without prejudice pursuant to § 1915(g)).

Thus, we conclude that the proper procedure is for the district court to

dismiss the complaint without prejudice when it denies the prisoner leave to

proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).

The prisoner cannot simply pay the filing fee after being denied in forma pauperis

status. He must pay the filing fee at the time he initiates the suit. Accordingly, in

the instant case, we conclude that the district court did not abuse its discretion in

dismissing Dupree’s complaint without prejudice.

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II.

Dupree next argues that this case should be reversed and remanded to the

district court because it is moot. According to Dupree, since he has now paid the

filing fee for this case in full, his complaint is re-instated and the appeal is moot.

In Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen, 815 F.2d 1435 (11th Cir.

1987), we addressed the issue of mootness. We held that “[t]he case or

controversy requirement of the Constitution requires that moot cases be dismissed;

in a moot case, there is no longer the vitality and interest among the parties that our

adversary system of justice requires.” Id. at 1448. As the Supreme Court has

made clear, the “burden of demonstrating mootness ‘is a heavy one.’” County of

Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642

(1979) (citation omitted). In County of Los Angeles, the Supreme Court articulated

a two part test for mootness:

Simply stated, a case is moot when the issues presented are no

longer live or the parties lack a legally cognizable interest in the outcome.

We recognize that, as a general rule, voluntary cessation

of allegedly illegal conduct does not deprive the tribunal of power

to hear and determine the case, i.e., does not make the case moot.

But jurisdiction, properly acquired, may abate if the case

becomes moot because

(1) it can be said with assurance that there is no reasonable

expectation . . . that the alleged violation will recur, and

(2) interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation.

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When both conditions are satisfied it may be said that the case is moot

because neither party has a legally cognizable interest in the final

determination of the underlying questions of fact and law.

440 U.S. at 631, 99 S.Ct. at 1383 (citations and quotations omitted).

We further conclude that because Dupree’s paying of the filing fee after the

district court dismissed his complaint did not re-instate the complaint, this case is

not moot.

For the foregoing reasons, we conclude that the district court properly

dismissed Dupree’s complaint without prejudice. Accordingly, we affirm the

judgment of dismissal.

AFFIRMED.

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