PER CURIAM:
These cases call on us to clarify when prisoners are eligible to proceed in forma pauperis ("IFP"). Over the past several years, plaintiff-appellant José Arzuaga,
As the appellees now seem to concede, Arzuaga's past-due Social Security benefits did not provide a basis for revoking his IFP status because the No Social Security Benefits for Prisoners Act of 2009 barred Arzuaga from accessing those benefits while incarcerated. See 42 U.S.C. § 404(a)(1)(B)(ii). We write primarily to address the appellees' contention that the revocation of Arzuaga's IFP status should nonetheless be affirmed on alternative grounds. In May 2013, after the three complaints were filed, Arzuaga received a separate deposit of $350 into his prisoner trust account and spent that money on consumer goods rather than filing fees. The appellees contend that by failing to apply these funds to filing fees, Arzuaga made himself ineligible for IFP status.
We conclude that Arzuaga complied with the provisions of the IFP statute even though he did not use the additional $350 he received to pay filing fees. We also conclude that, contrary to an earlier order of this court dismissing one of Arzuaga's appeals as untimely, all three appeals were timely. Accordingly, we exercise our authority to recall the mandate sua sponte in the dismissed appeal and reinstate that appeal. And because the district court erred by revoking Arzuaga's IFP status, we
Between 2010 and 2012, Arzuaga filed three separate section 1983 actions against various prison employees. See Arzuaga v. Quiros, Case No. 10-cv-1200 (D.Conn., filed July 29, 2010) ("Arzuaga I"); Arzuaga v. Faucher, Case No. 12-cv-668 (D.Conn., filed May 3, 2012) ("Arzuaga II"); Arzuaga v. Cieboter, Case No. 12-cv-743 (D.Conn., filed May 17, 2012) ("Arzuaga III"). In all three cases, Arzuaga moved for, and was granted, permission to proceed IFP. See Arzuaga I R. Docs. 1, 3; Arzuaga II R. Docs. 2, 3; Arzuaga III R. Docs. 2, 5.
In March 2013, the defendants in Arzuaga I and Arzuaga III separately moved to dismiss those cases pursuant to 28 U.S.C. § 1915(e)(2)(A), arguing that Arzuaga's allegations of poverty were untrue because in January 2010 he had been awarded over $6,000 in past-due Social Security benefits. Arzuaga I R. Doc. 128; Arzuaga III R. Doc. 39. In response, Arzuaga contended that he did not have access to these benefits while incarcerated. Arzuaga I R. Doc. 141; Arzuaga III R. Doc. 44. Arzuaga also moved to amend his IFP motion in all three actions to (1) reflect the Social Security benefits, and (2) affirm that he possessed $49.50 in his prisoner trust account. Arzuaga I R. Doc. 140; Arzuaga II R. Doc. 19; Arzuaga III R. Doc. 44.
The district court denied the motions to dismiss, finding that Arzuaga had not acted in bad faith by failing to disclose the Social Security benefits. Arzuaga I R. Doc. 147; Arzuaga III R. Doc. 54. The district court also concluded, however, that those benefits allowed Arzuaga to pay the filing fees, and thereby rendered him ineligible to proceed IFP. The district court therefore revoked Arzuaga's IFP status in
Arzuaga appealed all three dismissals by delivering notices of appeal to prison authorities on, at the latest, December 2, 2013.
Nonetheless, the district court denied Arzuaga IFP status on appeal and held that its prior revocation of Arzuaga's IFP status in all three actions was justified on an alternative ground. On April 23 and May 10, 2013 — shortly after Arzuaga sought leave to amend his IFP motions — Arzuaga received deposits totaling $350 into his prisoner trust account. Arzuaga did not inform the district court of these deposits, and instead spent $243.11 to purchase a beard trimmer, a television, and a digital antenna. The district court stated that it did not consider these purchases to be "necessities of life." See id. at 4 (quoting Potnick v. Eastern State Hospital, 701 F.2d 243, 244 (2d Cir.1983) for the proposition that "no party applying for leave to proceed in forma pauperis `must be made to choose between abandoning a potentially meritorious claim or foregoing the necessities of life'"). The district court therefore concluded that it "would have revoked Arzuaga's in forma pauperis status apart from any issue relating to past-due Social Security benefits." Id. at 5.
For these same reasons, the district court also certified that Arzuaga's appeals were not "not taken in good faith" under 28 U.S.C. § 1915(a)(3). Although the district court acknowledged that its prior revocation of Arzuaga's IFP status was based on the Social Security benefits, rather than Arzuaga's receipt of the $350 in April and May 2013, the district court nonetheless concluded that Arzuaga's appeals were "futile" because an appellate court may affirm on any ground in the record. Id. at 5.
Before turning to the merits of these appeals, we address the appellees' contention that the Arzuaga I and Arzuaga II appeals were also untimely, depriving us of appellate jurisdiction. Generally, a notice of appeal in a civil case with no federal parties must be filed within 30 days of the entry of the judgment or order appealed from. Fed. R.App. P. 4(a)(1). However, when a district court enters an order dismissing an action and fails to set out the judgment in a separate document, the 30-day period to appeal begins to run 150 days from the entry of the dispositive order. See Fed.R.Civ.P. 58(c); Fed. R.App. P. 4(a)(7); see also Perez v. AC Roosevelt Food Corp., 744 F.3d 39, 41 (2d Cir.2013). This separate document must be "separate from any judicial memorandum or opinion" and "must be labeled a `judgment.'" Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir.2003).
Here, the district court dismissed both Arzuaga I and Arzuaga II by text orders entered on October 23, 2013. The district court, however, never entered either judgment in a separate document. Under Rule 58(c), then, the 30-day periods for appeals did not begin running until 150 days after the dismissal of these actions, on March 22, 2014, so Arzuaga's notices of appeal were due by April 21, 2014. Arzuaga certified that he delivered his notices of appeal to prison authorities on December 2, 2013 at the latest, and under the prison mailbox rule, his notices are considered filed on that date. See Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). These two appeals are thus timely.
This conclusion also requires us to revisit our dismissal of the Arzuaga III appeal as untimely. The district court dismissed Arzuaga III in a text order on October 9, 2013, but again did not enter a separate judgment. Under Rule 58(c), Arzuaga's appeals period therefore did not begin to run until March 8, 2014, making his notice of appeal due by April 7, 2014. And as with Arzuaga I and Arzuaga II, the Arzuaga III appeal was filed as of the date Arzuaga delivered his notice of appeal to prison authorities, no later than December 2, 2013. Contrary to our earlier conclusion, then, Arzuaga III was not untimely, and should not have been dismissed. Accordingly, we exercise our authority to recall the mandate sua sponte and reinstate the Arzuaga III appeal. See Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir.1996); Cohen v. Empire Blue Cross & Blue Shield, 142 F.3d 116, 119 (2d Cir.1998) (per curiam) (recalling the mandate when "a serious issue" existed about whether an appeal should have been dismissed as untimely).
As an initial matter, Arzuaga's Social Security benefits did not justify revoking his IFP status. As both the appellees
Because Arzuaga's Social Security benefits did not preclude him from proceeding IFP, we turn to the appellees' alternative justification for revoking Arzuaga's IFP status. The appellees argue that Arzuaga should not be allowed to proceed IFP because, in April and May of 2013, he received deposits totaling $350 into his prisoner trust account. Rather than notifying the district court of these deposits or applying the funds to filing fees, Arzuaga spent $243.11 on what the appellees characterize as non-essential consumer goods. The appellees argue that Arzuaga could have paid the filing fees, chose not to, and is thus ineligible to proceed IFP. The district court endorsed this reasoning in its order denying Arzuaga permission to proceed IFP on appeal and finding that Arzuaga's appeals were not taken in good faith.
Boiled down to its core, the appellees' argument is that an incarcerated litigant who is proceeding IFP and who receives a deposit into his prisoner trust account after moving to proceed IFP should be required to (1) disclose that deposit to the district court and (2) immediately use the entirety of those funds to pay filing fees. Neither of these purported requirements finds any support in the IFP statute. First, the statute does not mandate that a prisoner proceeding IFP must disclose every deposit he or she receives in her prisoner trust account. 28 U.S.C. § 1915(a)(1) states that a prisoner who wishes to proceed IFP must provide "a statement of all assets such prisoner possesses" in support of his or her motion for IFP status. Similarly, 28 U.S.C. § 1915(a)(2) requires the prisoner to "submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint." But the statute nowhere requires a litigant to submit further documentation to the district court if he or she receives additional deposits, nor does it impose a continuing obligation to update the affidavit. Here, there appears to be no dispute that Arzuaga's IFP affidavits accurately described the state of Arzuaga's finances at the time Arzuaga filed his motions to proceed IFP. Arzuaga therefore complied with the documentation requirements of the IFP statute.
Second, the IFP statute does not obligate prisoners proceeding IFP to spend all subsequently received funds on filing fees. Nor does it excuse any obligation to pay those fees. Instead, the statute requires prisoners to pay the entire filing fee in installments deducted from their prisoner trust accounts. See Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997). Specifically, 28 U.S.C. § 1915(b)(1) provides:
"After the initial partial filing fee has been collected, the prisoner must make monthly payments in the amount of 20% of the income credited to his account in the preceding month, so long as the account contains more than $10, until the entire fee is paid." Nicholas, 114 F.3d at 19 (citing 28 U.S.C. § 1915(b)(2)).
Here, Arzuaga received a $100 deposit in April 2013 and a $250 deposit in May 2013. Because Arzuaga had to pay 20% of his income as an installment payment pursuant to section 1915(b)(2), these deposits increased the size of Arzuaga's monthly installment by $20 for April 2013, and $50 dollars for May 2013. There is no indication that Arzuaga failed to make the required installment payments.
Finally, we note that the additional $350 deposited into Arzuaga's prisoner account would not have covered the filing fee in all three of his cases in any event. As the filing fee is $350 per case, see 28 U.S.C. § 1914(a), he would have required $1,050 to pay the fees.
Accordingly, we respectfully conclude that the district court erred by revoking Arzuaga's IFP status. Neither Arzuaga's Social Security benefits nor his receipt of the $350 in April and May 2013 made Arzuaga ineligible to proceed IFP.
