                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2812
                                       ___________

                                  MISAEL CORDERO,
                                              Appellant

                                             v.

          GREGORY KELLEY, sue in their individual and official capacities;
           STEPHEN D'LLIO, sue in their individual and official capacities
                  ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 3-17-cv-01596)
                      District Judge: Honorable Peter G. Sheridan
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 9, 2018
              Before: SHWARTZ, KRAUSE, and FISHER, Circuit Judges

                              (Opinion filed May 10, 2018)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Misael Cordero appeals from the order of the District Court denying his

application for leave to proceed in forma pauperis (“IFP”). We will vacate and remand

for further proceedings.

                                             I.

       Cordero is a New Jersey state prisoner who is serving a life sentence. He filed an

IFP application along with a proposed complaint alleging that prison officials confiscated

his religious materials and obstructed the grievance process in violation of his First

Amendment rights. Cordero sought leave to proceed IFP in order to avoid prepayment of

the $400 filing and administrative fees. In support of his application, he submitted his

prison account statement for the preceding six months. The statement showed that,

although his balance had at times exceeded $700, he had only $5.86 at the time of filing.

       The District Court denied Cordero’s IFP application. The District Court reasoned

that Cordero had an income of $1,917.50 during the preceding six months, consisting of

$45 per month in prison wages as well as gifts from his family, for an average monthly

income of just over $300. The District Court further reasoned that this income showed

that Cordero could afford to prepay the fees or could have done so if he had saved his

money. Thus, the District Court denied Cordero’s application but gave him more time to

pay the fees. Cordero filed a motion for reconsideration. The District Court denied that

motion too but again gave Cordero more time to pay the fees. Cordero appeals.1


1
 The denial of an IFP application is a final order over which we have jurisdiction under
28 U.S.C. § 1291. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en
banc). We review the District Court’s ruling for abuse of discretion. See Jones v.
Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985). We granted Cordero leave to proceed IFP
                                             2
                                              II.

        Although the District Court did not expressly state as much, its denial of

Cordero’s IFP application has both a backward-looking and a forward-looking

component. The backward-looking component is the District Court’s conclusion that

Cordero could have prepaid the fees if he had saved his money instead of spending it on

other things. The forward-looking component is the District Court’s apparent conclusion

that Cordero would continue to receive the same income and would be able to save and

prepay the fees in the future if given more time. Cordero argues that the District Court

abused its discretion for both reasons. Although we reject some of Cordero’s specific

arguments, we ultimately agree.

       First, Cordero argues that courts can never consider assets that were previously

available to a prisoner because the IFP statute speaks solely in terms of the prisoner’s

present ability to pay the fees. See 28 U.S.C. § 1915(a)(1).2 We do not appear to have

addressed that issue in a precedential opinion. Other Courts of Appeals, however, have

held that courts may consider pre-filing expenditures so long as the courts inquire into the


on this appeal but, in doing so, we expressed no opinion on the District Court’s
assessment of the different record before it.
2
 Cordero relies for this proposition on a provision of the IFP statute stating that “[i]n no
event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the
prisoner has no assets and no means by which to pay the initial partial filing fee.” 28
U.S.C. § 1915(b)(4). That provision applies only when a prisoner already has been
granted IFP status and a partial initial fee is assessed pursuant to the Prison Litigation
Reform Act (“PLRA”). Thus, it does not speak to whether a prisoner should be granted
IFP status in the first place. The provision of the statute that does, however, also is
phrased in terms of the prisoner’s present ability to pay.

                                               3
nature and timing of those expenditures and give the plaintiff an opportunity to show that

they were not a “a deliberate attempt to avoid the filing fee.” Alexander v. Carson Adult

High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993) (collecting cases).3 The District Court did

not address that issue.

       The District Court also failed to otherwise properly account for Cordero’s

expenses and for amounts that he should reasonably be able to spend in prison. The

District Court did not acknowledge, for example, that one third of Cordero’s wages and

ten percent of his gifts are automatically deducted for payment toward fines and

penalties. Nor did the District Court make any determination regarding the nature or

amount of Cordero’s discretionary spending. Instead, the District Court appears to have

assumed that all of Cordero’s discretionary spending should count against him for IFP

purposes because his prison is required to supply him with the bare necessities of life.

       That is not the law of this Circuit. We have repeatedly recognized that “prisoners

are not required to surrender ‘those small amenities of life which they are permitted to

acquire in a prison’ in order to litigate [IFP] in the district court.” Jones, 752 F.2d at 79

(quoting Bullock v. Suomela, 710 F.3d 102, 103 (3d Cir. 1983)). In one case, for

example, we explained that “[a]n account of $50.07”—roughly $230 in today’s dollars—

“would not purchase many such amenities” but that “[t]hese need not be surrendered in


3
  These cases addressed the pre-PLRA practice of assessing partial fees in order to deter
frivolous prisoner litigation. Under the PLRA, that purpose now is served by requiring
prisoners granted IFP status to pay the full fees in installments. See Abdul-Akbar, 239
F.3d at 312. Thus, the question now is whether a prisoner can avoid prepayment of the
fees, not whether a prisoner can avoid payment altogether.

                                               4
order for a prisoner . . . to litigate [IFP] in the district court.” Souder v. McGuire, 516

F.2d 820, 824 (3d Cir. 1975). Thus, before denying IFP status on the basis of Cordero’s

prior earnings and expenditures, the District Court should have more thoroughly analyzed

the nature and timing of those expenditures, whether they were designed to avoid

prepayment of the fees, and whether and how they exceeded the amenities that Cordero

should not be required to surrender.4

       Second, Cordero argues that the District Court should not have considered the

gifts from his family, which accounted for the vast majority of his income during the

relevant period, because his family is poor and is able to send him money only

periodically. We do not agree that the District Court was required to ignore the gifts

already received for purposes of the backward-looking component of its analysis. For

purposes of the forward-looking component, however, the District Court should at least

have considered that issue. One court held in a pre-PLRA case that, in calculating a

prisoner’s income, courts should exclude “small gifts” altogether. In re Williamson, 786

F.2d 1336, 1340 (8th Cir. 1986). We have not gone that far. See Souder, 516 F.2d at 821

(relying on a regular recurring gift of $15 every two weeks). Nevertheless, before


4
  The District Court relied on Shahin v. Secretary of State, 532 F. App’x 123 (3d Cir.
2013) (per curiam), for the proposition that Cordero’s discretionary spending counted
against him because his prison provides him with the bare necessities. But Shahin, in
addition to being non-precedential, is distinguishable. In that case, a Panel of this Court
reasoned that the plaintiff’s own income permitted her to save enough to pay the fees
because she was married and her husband provided her “with food, clothing, shelter,
paying her medical and travel expenses and even her business losses[.]” Id. at 124. The
plaintiff in Shahin, however, was not a prisoner. Receiving a livelihood outside prison
from a spouse is a far cry from receiving only those bare necessities that prisons are
required to provide.
                                              5
concluding that Cordero would be able to earn and save enough money to prepay the fees

within a particular period of time, the District Court should at least have considered

whether Cordero had a reasonable expectation of receiving sufficient gifts in the future.

We note that the account statement that Cordero submitted to this Court showed only

about half as much in gifts as the statement he submitted to the District Court, which

covered the December holidays.

                                            III.

       For these reasons, we will vacate the District Court’s order denying Cordero’s IFP

application and will remand for further proceedings. We do not hold that the District

Court is required to grant Cordero’s application. Instead, we hold only that the District

Court should address the issues discussed above before making its ruling.




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