PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM LEBRON CHURCH,
Plaintiff-Appellant,

v.

ATTORNEY GENERAL OF THE
COMMONWEALTH OF VIRGINIA;
VIRGINIA DEPARTMENT OF
                                                                    No. 95-7722
CORRECTIONS; EDWARD W. MURRAY,
Director; VIRGINIA PAROLE BOARD;
COUNTY OF AMELIA, VIRGINIA;
THOMAS V. WARREN, Judge;
COMMONWEALTH OF VIRGINIA,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-95-612)

Argued: October 30, 1996

Decided: September 10, 1997

Before HALL and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Ervin wrote the
opinion, in which Judge Hall and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: James D. Ridgway, Third Year Law Student, Appellate
Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Collin Jefferson Hite, Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellees. ON BRIEF: Neal L. Walters,
Supervising Attorney, Carl D. Gray, Third Year Law Student, Appel-
late Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant. James S. Gilmore, III,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellees.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

William Church, a prisoner, appeals the order of the district court
for the Eastern District of Virginia dismissing his complaint filed pur-
suant to 42 U.S.C. § 1983 as frivolous under 28 U.S.C. § 1915(d).
Church requests that this Court resolve the question of whether he is
required to pay the applicable filing fees under§ 804(b) of the Prison
Litigation Reform Act (PLRA). 28 U.S.C. § 1915(b)(1). For the rea-
sons hereinafter explored, we hold that § 804(b) should not be applied
retroactively to Church, that the district court erred by dismissing
Church's complaint, and that this case should be remanded to the dis-
trict court with Church having leave to amend his pleadings pursuant
to Fed. R. Civ. P. 15.

I.

Church filed a complaint against the Attorney General of Virginia
and other state officials alleging that he had been physically mis-
treated in prison and that he was the victim of conspiracies to unlaw-
fully convict him and to deny him parole. In an October 19, 1995,
memorandum, the court below granted Church's request to proceed
in forma pauperis (IFP) and only required him to make partial pay-
ment of the filing fee. In the same memorandum the district court
stated that Church's claims would be dismissed as frivolous. Church
v. Virginia, CA 3:95CV612, slip op. at 1 (E.D. Va. Oct. 19, 1995).

                    2
On the same day, the court issued an order dismissing the action, J.A.
at 21, prompting this appeal.1

While the instant case was pending on appeal, the Prison Litigation
Reform Act (PLRA or the Act) was passed by Congress and signed
into law on April 26, 1996. Section 804(b) of the PLRA amends 28
U.S.C. § 1915 to require the full payment of a filing fee by prisoners
filing a civil action or an appeal IFP.

Church filed his notice of appeal on October 27, 1995. We directed
Church to address in his brief the question of whether the filing fee
requirement of the PLRA applies retroactively to a case pending on
appeal on the effective date of the Act. Here, we first examine the pri-
mary issue on appeal: the retroactive effect of the PLRA. Next, we
conclude that the court below erred by dismissing Church's complaint
after -- as opposed to before -- accepting a partial filing fee. Because
we instruct the district court to allow Church to amend his pleadings,
we will not address the merits of Church's complaint.

II.

A.

The relevant portion of 28 U.S.C. § 1915, as amended by § 804 of
the PLRA, provides:

            (b)(1) Notwithstanding subsection (a), if a prisoner brings
            a civil action or files an appeal in forma pauperis, the pris-
            oner shall be required to pay the full amount of a filing fee.
            The court shall assess and, when funds exist, collect, as a
            partial payment of any court fees required by law, an initial
            partial filing fee of 20 percent of the greater of--
_________________________________________________________________
1 The instant case was originally placed in abeyance pending our deci-
sion in Bellamy v. Davis, No. 95-7024. In Bellamy, the issue was whether
a district court could dismiss a complaint as frivolous under 28 U.S.C.
§ 1915(d) (1988), after payment of a partial filing fee. After the case was
set for oral argument, Bellamy moved to dismiss the appeal under Fed.
R. App. P. 42(b). The case was dismissed on June 18, 1996.

                    3
          (A) the average monthly deposit to the prisoner's
          account; or

          (B) the average monthly balance in the prison-
          er's account for the 6-month period immediately
          preceding the filing of the complaint or notice of
          appeal.

28 U.S.C. § 1915.

The Attorney General of Virginia (the Commonwealth),
Defendant-Appellee here, does not dispute that § 804 reveals no
express congressional intent that the provision apply retroactively.
However, given the lack of express intent, the parties predictably dis-
agree as to how we should determine whether the language applies to
cases pending on appeal when the Act was signed.

The Supreme Court recently attempted to clarify its precedent
guiding when congressional enactments should be applied retroac-
tively. Landgraf v. USI Film Products, 511 U.S. 244 (1994). The
Court noted that prospective application is favored, but that appellate
courts do maintain some discretion on this issue:

          [I]f Congress has [expressly stated its intention], of course,
          there is no need to resort to judicial default rules. When,
          however, the statute contains no such express command, the
          court must determine whether the new statute would have
          retroactive effect, i.e., whether it would impair rights a
          party possessed when he acted, increase a party's liability
          for past conduct, or impose new duties with respect to trans-
          actions already completed. If the statute would operate
          retroactively, our traditional presumption teaches that it does
          not govern absent clear congressional intent favoring such
          a result.

Id. at 280 (emphases added).(Thus, despite some disagreement among
the circuits as to whether § 804(b) should apply to cases pending at
the time of PLRA's signing, the test for application should be whether
it has a "retroactive effect."

                    4
Under the standard of Landgraf, if we require Church to now pay
a filing fee that he was not required to pay when he filed his appeal,
we "impair [a] right [he] possessed when he acted." Id. Although the
increased up-front cost imposed by § 804(b) may deter prisoners from
pursuing claims that they may otherwise have pursued-- one of the
arguments for enacting the PLRA -- their right of access to the courts
has nevertheless been diminished; the Commonwealth argues that this
right be retroactively diminished for Church.

The Commonwealth further argues that IFP prisoners never had a
right to reduced filing fees. Rather, according to the Commonwealth,
the IFP statute applicable when Church filed his claim only relieved
him from "prepayment" obligations, but did not relieve him of his
obligation for this payment. See Flint v. Haynes , 651 F.2d 970, 972
(4th Cir. 1981) ("The use of the word `prepayment' in subsection (a)
[of 28 U.S.C. § 1915] indicates that Congress did not intend to waive
forever the prepayment of costs, but rather intended to allow qualified
litigants to proceed without having to advance the fees and costs asso-
ciated with litigation."). Even so, Church was not previously obli-
gated to pay the larger filing fee now required upon filing his appeal.2
Further, retroactive imposition of the new filing fee would "impose
new duties with respect to transactions already completed," namely
filing his appeal. Landgraf, 511 U.S. at 280.

B.

The Commonwealth argues that the imposition of new filing fee
requirements for IFP prisoners is simply a procedural alteration in the
statute governing filing fees, and, under Landgraf, it is proper to
apply such changes retroactively. See id. at 275.3 The Court made the
substantive/procedural distinction when it instructed that "the court
must ask whether the new provision attaches new legal consequences
_________________________________________________________________
2 We are not suggesting that we have altered our previous position that
litigants remain responsible for fees and costs associated with litigation
although prepayment of certain expenses may be waived. Flint, 651 F.2d
at 972.
3 The Commonwealth apparently does not dispute that the Supreme
Court is settled in its holding that new statutes which affect the substan-
tive rights of the parties should normally be applied prospectively.

                    5
to events completed before its enactment." Landgraf, 511 U.S. at 269-
70.

The substantive/procedural distinction is not new, but builds on
Court precedent recognizing that procedural rules are more likely to
be properly applied to pending appeals because of"the diminished
reliance interests in matters of procedure." Id. at 275. In a 1969 case,
the Supreme Court held that an agency circular requiring a local hous-
ing authority to give notice of reasons and opportunity to respond
before evicting a tenant was applicable to an eviction proceeding that
began before the regulation was issued. Thorpe v. Housing Auth., 393
U.S. 268 (1969). The new hearing procedures did not affect either
party's obligations. Id.

However, the instant case is distinguishable from Thorpe. The
instant case involves the retroactive revocation of the right of an IFP
prisoner to gain access to the courts by initially making a partial pay-
ment of his filing fee. As Church stated, "[t]he obligation to pay the
appropriate filing fee arises at the moment of filing and is a necessary
part of the filing process." Br. of Appellant at 12. Since, at the time
Church filed and was granted IFP status, his financial status was eval-
uated and his fee obligations were determined, to reexamine the
imposition of filing fees would impose upon him new and unantici-
pated obligations.

The Court in Landgraf, however, noted that even some purely pro-
cedural laws and rules may not be appropriately applied retroactively:

          [T]he mere fact that a new rule is procedural does not mean
          that it applies to every pending case. A new rule concerning
          the filing of complaints would not govern an action in which
          the complaint had already been properly filed under the old
          regime . . . .

Id. at 275 n.29. Accordingly, in the instant case, the new law govern-
ing prisoner filing fees should not govern an action in which the pris-
oner has already "properly filed [his action and appeal] under the old
regime."

                    6
C.

Our sister circuits are split on the issue of the retroactivity of
§ 804(b). Evaluating the operation of § 804(b) in a context similar to
that of the instant case, the Second Circuit declined to apply
Landgraf's reasoning regarding the application of new filing rules.
See Covino v. Reopel, 89 F.3d 105, 108 (2d Cir. 1996). We disagree
with the reasoning of Covino.

First, the Covino court simply concludes that the new filing fee lan-
guage is procedural and imposes only a "slight burden" on the appel-
lant prisoner. Id. at 107. That court requires the prisoner to remedy
any disruption to settled expectations by either"accept[ing] . . . liabil-
ity [for filing fees] or withdraw[ing] his appeal." Id. This choice,
according to Covino, "fully serves the Congressional purpose of dis-
couraging meritless appeals." Id. While this may be true, we again
note that requiring the prisoner to make the choice suggested by the
Covino court is to improperly "impair rights . . . [he] possessed when
he acted . . . [and] impose new duties with respect to transactions
already completed." Landgraf, 511 U.S. at 280.4

The Eleventh Circuit, when it evaluated the application of certain
PLRA amendments to 28 U.S.C. § 1915, largely followed the Covino
court's interpretation of Landgraf. See Mitchell v. Farcass, 112 F.3d
1483 (11th Cir. 1997). In Mitchell, the court noted that § 1915(d) had,
prior to the passage of the PLRA, permitted a court to dismiss a case
if the court was "satisfied that the action [was] frivolous or mali-
cious." Id. at 1486 (quoting 28 U.S.C.§ 1915(d) (1994)). The PLRA
_________________________________________________________________

4 In Covino, the court stated that, only if "judicial resources had already
been expended," or if an appellant had "expended significant time and
effort by preparing an appellate brief," might the new fee provisions in
the PLRA be waived for a prisoner whose case was pending when the
Act became effective. Id. at 108. This rule was applied by the Second
Circuit when it held that a prisoner was not required to comply with the
PLRA because "his appeal was fully briefed, considered by us, and
deemed submitted for decision before the PLRA became effective."
Ramsey v. Coughlin, 94 F.3d 71, 73 (2d Cir. 1996). Since we reject the
Covino court's holding favoring retroactive application of the PLRA, we
also reject this narrow exception.

                     7
changed § 1915 to also allow dismissal of an action or appeal if it
"fails to state a claim on which relief may be granted" or "seeks mon-
etary relief against a defendant who is immune from such relief." Id.
(quoting 28 U.S.C. § 1915(e)(2)(B) (1997)). The Mitchell court con-
cluded that these amendments were "wholly procedural" and only
affected a prisoner's expectation interest; thus, the court held that they
had no retroactive effect on cases pending when the PLRA was
enacted. Id. at 1487.

We further note that the Covino court fails to notice that the actual
language used by Congress in § 804(b) gives no directive as to retro-
active application. We follow the Supreme Court's pronouncement in
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), that
"congressional enactments and administrative rules will not be con-
strued to have retroactive effect unless their language requires this
result."

The Seventh Circuit in Abdul-Wadood v. Nathan , 91 F.3d 1023
(7th Cir. 1996), held that a case filed before the PLRA's enactment
could not be dismissed based upon the PLRA-amended 28 U.S.C.
§ 1915(g). That amendment provided that "[i]n no event shall a pris-
oner bring a civil action or appeal a judgment in a civil action or pro-
ceeding under this section if the prisoner has, on three or more
occasions, . . . brought an action or appeal . . . that was dismissed on
the grounds that it was frivolous . . . ." 28 U.S.C. § 1915(g) (1996)
(emphasis added). The court in Abdul-Wadood concluded that the
new provision, by its language, only governed "bringing new actions
or filing new appeals." Abdul-Wadood, 91 F.3d at 1025. Similarly, the
Sixth Circuit in Wright v. Morris, 111 F.3d 414, 418 (6th Cir. 1997),
held that Congress "expressly prescribed the statute's proper reach,"
id. (quoting Landgraf, 511 U.S. at 280), when, by enacting the PLRA,
it amended 42 U.S.C. § 1997e to read, "[n]o action shall be brought
with respect to prison conditions under section 1983. . . until such
administrative remedies as are available are exhausted." See id. (quot-
ing 42 U.S.C. § 1997e(a)) (emphasis added). The Wright court specif-
ically pointed to the emphasized language as likely expressing
congressional intent that the new requirement not pertain to pending
cases. See Wright, 111 F.3d at 418. As noted above, 28 U.S.C.
§ 1915(b)(1), as amended by the PLRA and at issue in the instant
case, states that a prisoner "shall be required to pay the full amount

                     8
of a filing fee" if he "brings a civil action or files an appeal in forma
pauperis." (emphasis added). This language, just as that at issue in
Abdul-Wadood and Wright, is clearly prospective.

Other courts have also declined to follow the Second Circuit's rea-
soning in Covino, and they specifically reject the application of
§ 804(b) to litigants who initiated their cases or filed their appeals
before the President signed the PLRA. See White v. Gregory, 87 F.3d
429 (10th Cir. 1996); Thurman v. Gramley, 97 F.3d 185 (7th Cir.
1996). The Tenth Circuit simply stated this conclusion as self-evident
from the Act. White, 87 F.3d at 430. The Seventh Circuit similarly
found no ambiguity in the language Congress chose for the Act:
"[T]he Act itself names the events that require the assessment and
payment of fees: bringing a case, and filing an appeal. Once these
milestones have been passed, fees do not attach to later activities."
Thurman, 97 F.3d at 188 (citing Landgraf, 511 U.S. at 275 n.29). Fol-
lowing White and Thurman, we conclude that § 804(b) should not
apply to Church and thus his filing fee liability should not be altered.

III.

As a final matter, we address the issue of whether the court below,
applying the law in effect at the time Church filed his complaint,
erred in dismissing Church's action as frivolous after his payment of
a partial filing fee. We find that the district court did err in this regard.5

Pre-PLRA § 1915 allowed a litigant to proceed IFP upon proof of
inability to pay court costs and fees. See 28 U.S.C. § 1915(a) (1988).
The statute also allowed the district court to dismiss the IFP com-
plaint sua sponte if it was frivolous or malicious. See 28 U.S.C.
§ 1915(d) (1988).

The question not specifically addressed by the statute, and one that
at least seven circuits have answered in the negative, is whether under
§ 1915(d) the district court may sua sponte dismiss an action as a friv-
olous IFP action after accepting a partial filing fee. See Hughes v.
City of Albany, 76 F.3d 53, 55-56 (2d Cir. 1996); McCaslin v. First
_________________________________________________________________
5 We review questions of law under a de novo standard of review.
Williams v. Dept. of Veterans' Affairs, 104 F.3d 670, 673 (4th Cir. 1997).

                      9
Nat'l Bank, 43 F.3d 1182, 1183 (8th Cir. 1994); Butler v. Leen, 4 F.3d
772, 773 (9th Cir. 1993); Clark v. Ocean Brand Tuna, 974 F.2d 48,
50 (6th Cir. 1992); Grissom v. Scott, 934 F.2d 656, 657 (5th Cir.
1991); Herrick v. Collins, 914 F.2d 228, 230 (11th Cir. 1990); Bryan
v. Johnson, 821 F.2d 455, 458 (7th Cir. 1987). We today follow our
sister circuits.

We also note that, for purposes of amending his complaint, Church
should be treated as if he had not filed in forma pauperis. See Hughs,
76 F.3d at 55-56 (2nd Cir. 1996); Grissom, 934 F.2d at 657; Bryan,
821 F.2d at 458. An IFP litigant is entitled to the opportunity under
Fed. R. Civ. P. 15 to amend his complaint before dismissal.6 See
Hughs, 76 F.3d at 56; Butler, 4 F.3d at 773; Clark, 974 F.2d at 50;
Grissom, 934 F.2d at 657; Herrick, 914 F.2d at 230). Therefore, the
district court erred by dismissing Church's complaint before giving
him an opportunity to correct any defects in the pleading.

IV.

We conclude that, even under Landgraf's evaluation of the retroac-
tivity of procedural rules, Landgraf requires us to follow the Supreme
Court's historical presumption against retroactivity and only apply
§ 804(b) prospectively. Further, we hold that the district court erred
by dismissing Church's complaint after the court accepted the IFP
prisoner's partial filing fee without allowing Church the opportunity
to cure any defects in his complaint before dismissal. Therefore, this
case shall be remanded with the instruction that Church be given
leave to amend his pleadings or withdraw his suit without making any
additional filing fee payments pursuant to § 804(b).

REVERSED AND REMANDED
_________________________________________________________________
6 "A party may amend the party's pleading once as a matter of course
at any time before a responsive pleading is served .. . ." Fed. R. Civ. P.
15(a).

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