                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-2006

Crawford v. Frimel
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2415




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO: 05-2415

                            CARL DWAYNE CRAWFORD,

                                                  Appellant

                                             v.

                    EDWARD M. FRIMEL; VITO D. ROSELLI;
                KEITH R. HOLDSWORTH; MICHAEL CARBONELL;
                    KEVIN MCSHANE; JAMES R. MELINSON
                              _______________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00118)
                    District Judge: Honorable Mary A. McLaughlin
                    _______________________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     July 5, 2006

          Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                  (Filed July 26, 2006)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Appellant Carl Crawford appeals from a District Court order denying his request to

proceed in forma pauperis (“IFP”) in his civil rights action brought under Bivens v. Six

Unknown Named Agents on the Federal Bureau of Narcotics, 403 U.S. 388 (1971). For
the reasons that follow, we will vacate the District Court’s order and remand the matter

for further proceedings.

                               I. Facts and Procedural History

       On January 11, 2005, Crawford filed a Bivens action against five FBI agents and

United States Magistrate Judge James R. Melinson alleging that the Defendants conspired

to issue a warrant and search his home without probable cause. He seeks release from

custody, the expungement of his record, and monetary damages. He also filed a

completed application to proceed IFP with the necessary attachments.

       Two days later, the District Court issued a memorandum implicitly finding that

Crawford is eligible to proceed IFP and that $20.76 would be deducted from Crawford’s

prison account. Crawford v. Frimel, No. 05-cv-00118, Mem. and Order (E.D. Pa. Jan. 14,

2005). However, the District Court denied the motion because Crawford “may not have

known when he brought this action that he must pay the filing fee, and that even if the full

filing fee, or any part of it, has been paid, the Court must dismiss the case if it finds that

the action” falls within 28 U.S.C. § 1915(e)(2). The District Court then issued the

following order:

       1.     The petition is DENIED WITHOUT PREJUDICE to its reassertion in
              accordance with the terms of this order;
       2.     If plaintiff files with the Court within twenty (20) days from the date of this
              order a notice that he wishes to proceed with this action and thereby
              obligate himself to pay the $150 filing fee, this action will be reinstated; and
       3.     The Clerk of Court shall CLOSE this case statistically.

       Id. The Court sent Crawford notice of the order, but the order was returned by the

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Postal Service as undeliverable. On April 19th, Crawford gave notice of a change of

address. The District Court immediately forwarded a copy of the January 14, 2005 order

to Crawford’s new address. Crawford quickly responded with a document titled “Petition

to Appeal To Proceed in forma pauperis,” which the District Court entered on April 29,

2005. The District Court treated the document as a notice of appeal (NOA) from the

order entered on January 14, 2005. We granted Crawford’s request to proceed IFP on

appeal, but sent him a letter explaining that the appeal might be dismissed for lack of

jurisdiction because the order is not final or appealable. See Borelli v. City of Reading,

532 F.2d 950, 951-52 (3d Cir. 1976).

       On July 27, 2005, we entered the following order:

       It appears that Appellant’s notice of appeal was filed more than sixty days after the
       District Court’s order entered January 14, 2005 became final at the expiration of
       the twenty-day period in which Appellant had to respond. See Fed. R. App. P.
       4(a)(1)(A); Penn West Assoc., Inc. v. Cohen, 371 F.3d 118, 128 n.9 (3d Cir. 2004)
       (explaining that a dismissal without prejudice becomes final at the conclusion of
       the designated period). We remand to the District Court for the purposes of
       determining whether Appellant satisfies the requirements of either Federal Rule of
       Appellate Procedure 4(a)(5) or 4(a)(6). The Clerk shall transmit to the District
       Court Appellant’s document entitled “Petition To Appeal To Proceed in forma
       pauperis” which the District Court may wish to construe as either a motion for
       extension of time to file an appeal under Federal Rule of Appellate Procedure
       4(a)(5) or a motion to reopen the time to file an appeal under Federal Rule of
       Appellate Procedure 4(a)(6). In the meantime, we retain jurisdiction and postpone
       ruling on whether to dismiss for lack of jurisdiction.

On remand, the District Court held that Crawford fulfilled the requirements of Rule

4(a)(5) and granted his motion to appeal out of time. We then entered a briefing

schedule. Crawford timely filed his pro se brief and filed a motion for the appointment of

                                             3
counsel on appeal as well as a motion to supplement the pleadings and add additional

defendants. The Appellees filed a motion to dismiss the appeal for lack of appellate

jurisdiction or as untimely and also filed their appellate brief. Crawford submitted a

reply. The matter is now ripe for review.

                       II. Jurisdiction and Timeliness of the Appeal

       We have jurisdiction to review final orders of the District Court. 28 U.S.C. §

1291. The denial of a motion to proceed IFP is a final and appealable order. See Abdul-

Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). The parties do not dispute that the

District Court’s order dismissing the case without prejudice became final at the expiration

of the twenty-day window. See Penn West Assoc., Inc. v. Cohen, 371 F.3d 118, 128 n.9

(3d Cir. 2004). Nor do the parties challenge on appeal the propriety of the District

Court’s order granting an extension of time to file an appeal. However, the Appellees

still seek to dismiss the appeal arguing that the notice of appeal was untimely filed.1

       Once the District Court construed Crawford’s “Petition to Appeal” to include a

request for an extension of time under Rule 4(a)(5), and granted the motion, the notice of

appeal filed on April 29, 2005 became timely filed. The Appellees have not filed a cross-

appeal challenging the District Court’s order granting Crawford an extension of time to




       1
          We have yet to decide whether the time to file a notice of appeal is jurisdictional
or a “claim-processing” rule subject to waiver. See Eberhart v. United States, __U.S.__,
126 S. Ct. 403 (2005). However, we need not address that issue here because the
timeliness of the notice of appeal is not at issue in this case.

                                              4
file an appeal under 4(a)(5), thereby waiving the issue on review. See Helvering v.

Pfeiffer, 302 U.S. 247, 250-51 (1937) (“[A]n appellee cannot without a cross-appeal

attack a judgment entered below.”). Thus, we accept that Appellant’s April 29, 2005

petition, which was construed as a notice of appeal, is timely, and turn to whether the

District Court abused its discretion in denying Crawford’s motion to proceed IFP.

                                          III. IFP

       We review a District Court order denying a motion to proceed IFP for abuse of

discretion. See Abdul-Akbar v. Watson, 901 F.2d 329, 331 (3d Cir. 1990). Title 28

U.S.C. § 1915(a) sets forth the conditions that a petitioner must satisfy in order to receive

IFP status. See also Roman v. Jeffes, 904 F.2d 192, 194 n.1 (1990). Section 1915(a)

provides:

       (1)    Subject to subsection (b), any court of the United States may authorize the
              commencement, prosecution or defense of any suit, action or proceeding,
              civil or criminal, or appeal therein, without prepayment of fees or security
              therefor, by a person who submits an affidavit that includes a statement of
              all assets such prisoner possesses that the person is unable to pay such fees
              or give security therefor. Such affidavit shall state the nature of the action,
              defense or appeal and affiant’s belief that the person is entitled to redress.
       (2)    A prisoner seeking to bring a civil action or appeal a judgment in a civil
              action or proceeding without prepayment of fees or security therefor, in
              addition to filing the affidavit filed under paragraph (1), shall 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 or notice of appeal, obtained from the
              appropriate official of each prison at which the prisoner is or was confined.

       In Sinwell v. Shapp, we explained that it would be improper for a District Court to

deny a motion for IFP and dismiss a case on “the inappropriate factor of venue rather than

                                              5
on economic status.” 536 F.2d 15, 18-19 (3d Cir. 1976). Although § 1915 was amended

to permit a court to dismiss a case as frivolous, Sinwell implies that without express

authorization to consider other factors, IFP should be granted or denied based on those

requirements set forth in the rule. See also Roman, 904 F.2d at 194 n.1 (explaining that

IFP determinations consist of a two-step inquiry–financial eligibility and § 1915(e)).

       As the D.C. Circuit explained in In re Green, 669 F.2d 779 (D.C. Cir. 1981),

“[a]part from the necessity of a case-by-case determination of poverty, frivolity or

maliciousness, a court may impose conditions upon a litigant–even onerous conditions–so

long as they assist the court in making such determinations” and do not deny the litigant

his constitutional right to access the courts. Id. at 786.

       Here District Court did not deny Crawford’s IFP status on an assessment of

financial eligibility or under § 1915(e). Rather, it acknowledged that Crawford qualifies

for IFP, but denied the application because Crawford failed to timely respond indicating

his desire to proceed on the complaint. The District Court’s order was not imposed with

the purpose of assisting the Court in making a financial eligibility determination. Rather,

its intent was to give Crawford additional warning that he would still be charged even if

the District Court dismissed the case as frivolous. Although we applaud the District

Court’s desire to assist a pro se litigant, imposing upon Crawford an additional burden

detached from establishing financial eligibility was an abuse of discretion.

       Accordingly, we will vacate the District Court’s order and remand the case for



                                               6
further proceedings. Appellant’s motion for the appointment counsel on appeal is denied.

Appellees’ motion to dismiss is denied.2




       2
           The Appellees filed a motion to dismiss, repeating the argument in their brief.
The Appellees’ motion is meritless, ignores and omits key facts, and incorrectly applies
obvious rules of date tabulation. The Appellees, through counsel, argue that Crawford’s
notice of appeal is untimely because he fails to satisfy Federal Rule of Appellate
Procedure 4(a)(6). Inexplicably, the Appellees completely ignore this Court’s remand
order and the District Court’s order granting a Rule 4(a)(5) extension. Indeed, they even
fail to mention Rule 4(a)(5) at all in either their motion to dismiss or their appellate brief.
It is as if the Appellees overlooked the past year of litigation in this case.



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