                                                    [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 10-10619         ELEVENTH CIRCUIT
                                                     OCT 13, 2011
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________          CLERK

                  D.C. Docket No. 4:04-cv-00105-MP-AK

ROSS J. LAWSON,

                                                          Plaintiff-Appellant,

                                 versus

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,

                                                        Defendant-Appellee,

ALEPH INSTITUTE, INC.,

                                                                  Defendant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                           (October 13, 2011)

                   ON PETITION FOR REHEARING
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

       Appellant Ross J. Lawson’s Motion for Rehearing is GRANTED. The

panel’s opinion of May 25, 2011 is withdrawn and the following opinion is

substituted in its place.

       Ross Lawson, a Florida prisoner, filed a pro se lawsuit against the Secretary

of the Florida Department of Corrections in his official capacity (the “DOC”) for

injunctive and declaratory relief under 42 U.S.C. § 1983. In his complaint,

Lawson alleged violations of the Religious Land Use and Institutionalized Persons

Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1, and the Florida Religious

Freedom Restoration Act (“RFRA”), Fla. Stat. Ann. § 761.01.1 Finding that

Lawson’s professed beliefs in Orthodox Judaism were insincere, the district court

dismissed the action as frivolous under the Prison Litigation Reform Act (PLRA),

28 U.S.C. § 1915(e)(2)(B)(i). On appeal, Lawson argues that the district court

erroneously dismissed his suit as frivolous, inappropriately resolved disputed

issues of fact about Lawson’s sincerity, and failed to afford him adequate notice




       1
        Lawson initially filed his complaint pro se, but paid the full filing fee with his
complaint. After eighteen months of litigation, Lawson retained counsel, who filed an amended
complaint. Counsel later withdrew. Lawson proceeds pro se on appeal.

                                              2
and an opportunity to present evidence before dismissing the complaint. After a

review of the record, we reverse and remand.

                                             I.

       Lawson filed an amended complaint alleging that the DOC burdened his

practice of Orthodox Judaism by, inter alia, denying him access to Kosher meals,

denying access to daily and weekly religious services, and denying his right to

observe Jewish holidays.2

       The DOC moved to dismiss the complaint as frivolous because Lawson’s

religious beliefs were not sincere. It also requested dismissal as a sanction against

Lawson for filing a frivolous lawsuit. In support of the motion, the DOC

submitted records of Lawson’s canteen purchases, showing that he purchased non-

Kosher food items, as well as several affidavits from prison personnel supporting

the DOC’s position that Lawson’s beliefs were insincere. In opposition to the

motion to dismiss, Lawson filed a motion to strike the affidavits, disputed the

content of the affidavits, and submitted affidavits of other inmates to establish that

he had been deprived of the opportunity to practice his religion. He also submitted

grievances and other documentation for the district court’s consideration.


       2
         He also requested an emergency preliminary injunction requiring the DOC to provide
Kosher meals and to exempt him from the grooming code. The district court denied the
preliminary injunction and Lawson does not appeal from that order.

                                              3
       Although Lawson paid his initial filing fee in full, the magistrate judge

recommended that the complaint be dismissed as frivolous under 28 U.S.C. §1519

because there was evidence that Lawson’s religious beliefs were not sincere and

that Lawson be given a “strike” under § 1519(g).3 Over Lawson’s objections, and

after considering Lawson’s motion, the district court adopted the magistrate

judge’s recommendation and dismissed the complaint with prejudice.

                                                 II.

       On appeal, Lawson first argues that the district court abused its discretion

by dismissing the action as frivolous. We review the district court’s dismissal of

action as frivolous under § 1915(e)(2)(B)(i) for abuse of discretion. Mitchell v.

Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002). “A

district court abuses its discretion if it applies an incorrect legal standard, follows

improper procedures in making the determination, or makes findings of fact that

are clearly erroneous.” Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263

F.3d 1304, 1309 (11th Cir. 2001).




       3
          At the time of the magistrate judge’s recommendation, Lawson had not filed a response
to the motion for sanctions. Lawson had timely tendered his response to the prison mail system,
but his objections were not docketed in the district court until after the magistrate judge’s report.
In any event, the district court considered Lawson’s response and the evidence before adopting
the magistrate judge’s recommendation.

                                                  4
      Section 1915(e)(2)(B)(i) provides that the district court shall dismiss the

case of a prisoner proceeding in forma pauperis (IFP) if the action is frivolous or

malicious. 28 U.S.C. § 1915(e)(2)(B)(i). A claim is frivolous if it “lacks an

arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100

(11th Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

      On review, we conclude that the district court abused its discretion by

dismissing Lawson’s action as frivolous under § 1915(e)(2)(B)(i). This court has

held that “§ 1915(e) only applies to cases in which the plaintiff is proceeding [in

forma pauperis].” Farese v. Scherer, 342 F.3d 1223, 1228 (11th Cir. 2003)

(emphasis added). Additionally, the Supreme Court has clarified that courts only

review for frivolity under § 1915 when the plaintiff fails to pay the initial filing

fee; this is not the case here. See Neitzke v. Williams, 490 U.S. 319, 325-26

(1989).

       Lawson did not cite to our circuit precedent regarding § 1915 in his initial

brief on appeal, nor did he specifically argue that the district court erred for

dismissing his claim as frivolous under the IFP statute. Ordinarily when an

appellant fails to make an explicit argument in his initial brief, we consider it

waived. Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of

Georgia, 633 F.3d 1297, 1309 n. 25 (11th Cir. 2011). Here, however, Lawson did

                                           5
note in several places before the district court and the court of appeals that he paid

the initial filing fee in full. And briefs filed by pro se litigants are to be read

liberally. United States v. Hung Thien Ly, 646 F.3d 1307, 1316 (11th Cir. 2011).

Because Lawson paid the filing fee in full at the time he filed his initial complaint,

he was never subject to the statute governing the filings of IFP litigants. Thus, the

district court erred when it dismissed his complaint for frivolity pursuant to that

statute. The order of the district court is REVERSED and REMANDED.




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