Filed: Jul. 07, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT JULY 07, 2008 No. 06-16396 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00616-CV-ORL-22-KRS EDWARD J. VALE, Plaintiff-Appellant, versus INTERNAL REVENUE SERVICE, MARK EVERSON, Commissioner, Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (July 7, 2008) Before ANDERSON, BIRCH and HULL, Circuit J
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT JULY 07, 2008 No. 06-16396 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00616-CV-ORL-22-KRS EDWARD J. VALE, Plaintiff-Appellant, versus INTERNAL REVENUE SERVICE, MARK EVERSON, Commissioner, Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Florida _ (July 7, 2008) Before ANDERSON, BIRCH and HULL, Circuit Ju..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 07, 2008
No. 06-16396 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00616-CV-ORL-22-KRS
EDWARD J. VALE,
Plaintiff-Appellant,
versus
INTERNAL REVENUE SERVICE,
MARK EVERSON, Commissioner,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 7, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Edward J. Vale, proceeding pro se, appeals the district court’s denial of his
motion for leave to proceed in forma pauperis (“IFP”) and dismissal of his civil
action under 26 U.S.C. § 7422(a) for failure to comply with a court order.1
Because Vale did not file an amended notice of appeal after the district court
denied his Federal Rule of Civil Procedure 60(b) motion for post-judgment relief,
we lack jurisdiction to review that matter. Since Vale complied with the magistrate
judge’s order requiring an accounting statement pursuant to 28 U.S.C.
§ 1915(a)(2), the district court abused its discretion in denying his motion for leave
to proceed in forma pauperis (IFP) and in sua sponte dismissing the complaint.
Accordingly, we REVERSE and REMAND.
I. BACKGROUND
On 4 May 2006, Vale, a Florida prisoner, filed a pro se complaint against the
Internal Revenue Service and its Commissioner (collectively “IRS”) seeking a
refund of $744 in overpaid taxes under § 7422(a). R1-1 at 1-2. Vale filed an
affidavit of indigency, which the district court construed as a motion for leave to
1
In connection with his appeal, Vale has filed three motions in our court: (1) to vacate or
reconsider our order granting appellees’ motion for an extension of time to file their brief; (2) to
strike appellees’ brief as untimely, insufficient, and irrelevant; (3) to stay decision pending state
court grievance proceedings. Finding those motions to be without merit they are DENIED. Also,
the appellees argue that we should affirm the judgment because the district court lacked jurisdiction
over Vale’s complaint. However, this jurisdictional issue was not addressed in the district court and
is not before us on appeal. Therefore, this issue is left for the district court to address in the first
instance on remand. See Bartholomew v. AGL Resources, Inc., 361 F.3d 1333, 1342 n.6 (11th Cir.
2004).
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proceed IFP. R1-3. He attached an inmate account statement from the Florida
Department of Corrections (“FDOC”) for the period between 30 September 2005
and 30 March 2006. Id., exh. 2. On 26 June 2006, a magistrate judge issued an
order requiring Vale to submit an accounting of the entire six-month period
preceding the filing of his complaint, specifically from 8 November 2005 to 8
May 2006. R1-4 at 2. It warned that the failure to do so within 20 days would
result in the dismissal of the action.
Id.
Vale filed a motion for an extension of time to file the account statement,
which the magistrate judge granted until 29 September 2006. R1-5, 6. On 29
August 2006, Vale filed an account statement for the period between 4
February 2006 and 4 August 2006. R1-7, exh. 2. On 8 September 2006, the
magistrate judge issued an order noting that Vale had not supplied a complete
accounting of the six-month period preceding the filing of his complaint and
ordered Vale to pay the full filing fee or file the account statement within 20 days.
R1-8. On 13 September 2006, the magistrate judge issued another order noting
that Vale had made a partial payment of $50 towards the filing fee and ordered
Vale to pay the remainder of the filing fee or file the account statement as required
by the previous orders within 20 days. R1-9.
3
On 15 September 2006, the IRS filed a motion to dismiss for improper
service and lack of subject matter jurisdiction. R1-10. On 26 September 2006,
Vale filed a motion for a 30-day extension of time to file the account statement,
which the magistrate judge denied. R1-12, 13. On 4 October 2006, the magistrate
judge issued a report recommending the denial of Vale’s motion to proceed IFP
and the dismissal of the case without prejudice because Vale failed to comply with
its previous orders. R1-14 at 2-3.
Thereafter, Vale responded to the IRS’s motion to dismiss and filed a motion
for rehearing, arguing that his failure to file the proper account statement was the
result of circumstances beyond his control and resubmitted a motion for a time
extension. R1-16, 17 at 1-2. The magistrate judge construed his motion for
rehearing as a motion for reconsideration, which it denied. R1-18. The district
court issued an order adopting the magistrate judge’s report, denied Vale’s motion
to proceed IFP, and dismissed the complaint without prejudice. R1-19.
On 4 December 2006, Vale filed a notice of appeal. R1-20. He later filed a
motion to reopen the case and motion for relief from judgment under Rule 60(b),
arguing that his failure to file a complete accounting of the six months preceding
the complaint was a result of excusable neglect. R1-22, 23. IRS responded to
Vale’s motions to reopen and for relief from judgment, arguing that the district
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court lacked jurisdiction to consider his complaint. R2-30. Vale filed a motion to
strike the defendants’s response as untimely, which the defendants argued was
meritless. R2-34, 36. On 4 April 2007, the district court denied Vale’s motions to
reopen and for relief from judgment because Vale failed to show good cause. R2-
37.
On 23 January 2008, the IRS filed a motion for an extension of time to file
an appellate brief, which we granted. Vale filed a response to the motion, which
we returned as moot in light of our then recent order. Attached to his reply brief,
Vale included a motion to vacate or reconsider our order granting the extension of
time, arguing that the Federal Rules of Appellate Procedure did not provide a
procedure to move for an extension of time and that we should have considered his
response to the motion. It also contained a motion to strike the IRS’s brief as
untimely, insufficient, and irrelevant. Its appendix contained a motion to stay the
appeal pending the decision of state court grievance proceedings. Vale argued that
moving for a stay in the district court was impracticable. He asserted that the
proceedings may establish the FDOC’s administrative failure regarding his motion
to proceed IFP.
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II. DISCUSSION
A. Whether we have jurisdiction to review the district court’s order
denying Vale’s post-judgment motion under Federal Rule of Civil
Procedure 60(b)
The IRS argues that the district court’s order denying Vale’s motion for
relief under Rule 60(b) was a final appealable order, requiring the filing of a
separate notice of appeal. It asserts that Vale failed to amend his notice of appeal
to include the district court’s order denying his Rule 60(b) motion or file a separate
notice of appeal. Thus, it concludes that we lack jurisdiction to review the district
court’s denial of his motion for relief.
We review jurisdictional issues de novo. United States v. Cartwright, 413
F.3d 1295, 1299 (11th Cir. 2005) (per curiam). “The timely filing of a notice of
appeal is a mandatory prerequisite to exercise of appellate jurisdiction.” United
States v. Williams,
425 F.3d 987, 989 (11th Cir. 2005) (per curiam) (citation
omitted). Generally, when a post-judgment motion is filed after the notice of
appeal from the underlying judgment, a separate notice of appeal is required to
preserve appellate review. Green v. Union Foundry Co.,
281 F.3d 1229, 1233
(11th Cir. 2002). Nevertheless, a pro se appellant’s brief may substitute as
adequate notice in such a case if it is filed within the appropriate time period
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prescribed by Federal Rule of Appellate Procedure 4(a). Finch v. City of Vernon,
845 F.2d 256, 259-60 (11th Cir. 1998) (per curiam).
Vale concedes that he did not file a separate or amended notice of appeal of
the district court’s denial of his post-judgment motions to reopen and for relief
under Rule 60(b). Moreover, he did not submit his appellate brief until 1 October
2007, almost six months after the district court’s 4 April 2007 order and well after
the 60-day period prescribed by Appellate Rule 4(a)(1)(B). Vale did not properly
perfect an appeal from that order, thus we will not consider the district court’s
ruling regarding Vale’s post-judgment motions on appeal.
B. Whether the district court abused its discretion in denying Vale’s
motion for leave to proceed IFP for failure to file an accounting
statement and in sua sponte dismissing the complaint
Vale argues that the district court abused its discretion in dismissing his
complaint for failure to comply with a court order because he did not willfully
disobey the requirements of 28 U.S.C. § 1915(a) and paid a partial filing fee of $50
in good faith.2 He maintains that he should not be held responsible for the
administrative errors of the FDOC, relying on Kilgo v. Ricks, 983 F.2d 189 (11th
Cir. 1993). Vale contends that he filed a grievance with the FDOC and diligently
2
Vale’s brief also contains arguments regarding the district court’s initial denial of his
motion for leave to appeal IFP. That issue is now moot as the district court subsequently granted
the motion, which we recognized in our order of 4 December 2007.
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and reasonably attempted to resolve the administrative problem. He asserts that
the public interest in expeditious resolution and favoring the disposition of cases
on the merits outweighs the district court’s need to manage its docket and that the
district court had a less dramatic alternative than dismissal, including sanctions.
He posits that the district court abused its discretion in dismissing the action before
his administrative grievance was resolved.
We review the district court’s denial of a motion for leave to proceed IFP for
abuse of discretion. Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th
Cir. 2004) (per curiam). Although the district court “has wide discretion in
denying an application to proceed IFP . . . in civil cases for damages . . . the courts
should grant the privilege sparingly” and “ must not act arbitrarily [or] deny the
application on erroneous grounds.”
Id. at 1306-07.
Congress passed the Prisoner Litigation Reform Act of 1995 (“PLRA”) “in
an effort to stem the flood of prisoner lawsuits in federal court.” Wilson v.
Sargent, 313 F.3d 1315, 1318 (11th Cir. 2002) (per curiam) (quotation omitted).
“[T]he PLRA amended portions of 28 U.S.C. § 1915 to require the payment of
filing fees by prisoners proceeding [IFP] in the district court.”
Id. In addition to
an affidavit of indigency, prisoners seeking to bring a civil action without
prepayment of fees must “submit a certified copy of the trust fund account
8
statement (or institutional equivalent) for the prisoner for the [six]-month period
immediately preceding the filing of the complaint . . . from the appropriate official
of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).
Vale’s initial account statement covered from 30 September 2005 to 30
March 2006, and thus the magistrate judge properly ordered Vale to file a complete
accounting for the six-months preceding the filing of his complaint, specifically
from 8 November 2005 to 8 May 2006. See R1-3, exh. 2; R1-4 at 1-2. Vale’s
second submission, filed on 31 August 2006, covered from 4 February 2006 to 4
August 2006. See R1-7, exh. 2. Thus, his submissions, in aggregate, covered from
30 September 2005 to 4 August 2006, including the entire six-months preceding
the filing of the complaint. See § 1915(a)(2). The district court denied Vale’s
application on erroneous grounds because Vale complied with the magistrate
judge’s orders on 31 August 2006, well before the 28 September 2006 extended
deadline. Therefore, the district court abused its discretion in denying Vale’s
motion for leave to proceed IFP. See Martinez, 364 F.3d at 1307. Additionally,
the district court dismissed Vale’s complaint sua sponte for failure to comply with
the magistrate judge’s numerous orders. R1-19. Since Vale actually complied
with the magistrate judge’s request, the district court also abused its discretion in
this regard. See
Wilson, 313 F.3d at 1318, 1320-22 (reviewing district court’s sua
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sponte dismissal of prisoner’s complaint for failure to comply with its IFP order for
abuse of discretion).
III. CONCLUSION
While Vale did not submit a complete account statement for the six-month
period preceding the filing of his complaint, his submissions in aggregate covered
the entire six-month period from 8 November 2005 to 8 May 2006. Thus, the
district court abused its discretion in denying his motion for leave to proceed IFP
and sua sponte dismissing the complaint because Vale complied with the
requirements of 28 U.S.C. § 1915(a)(2). Accordingly, we
REVERSE and REMAND.
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