                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2009

Gary Bivins v. Pennsylvania Board o
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4115




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BLD-139                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-4115
                                      ___________

                                     GARY BIVINS,
                                                        Appellant

                                            v.

               PENNSYLVANIA BOARD OF PROBATION & PAROLE
                    ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-01-cv-02451)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 19, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                 (Filed: April 23, 2009 )
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       On June 19, 2003, this Court, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), dismissed

as frivolous appellant Gary Bivins’ appeal from the District Court’s dismissal of his

original case for lack of merit. Bivins, proceeding pro se, then filed on August 25, 2008,
a motion for reconsideration of and a return of the filing fees paid to both the District

Court and this Court in his original case. In his motion, he argued that the filing fee

provisions of the Prison Litigation Reform Act (“PLRA”) did not apply to “habeas corpus

challenges to the parole procedures, such as the one petitioner filed” in his original case.

The District Court denied his motion on September 2, 2008, noting that this Court had

held that Bivins’ original complaint was, in fact, a 42 U.S.C. § 1983 action, and not a 28

U.S.C. § 2254 habeas corpus petition. Bivins then filed the instant appeal on October 3,

2008, and this Court granted his IFP motion.

       We have appellate jurisdiction over this appeal under 28 U.S.C. § 1291, and

review it for possible dismissal under 28 U.S.C. § 1915(e)(2)(B). An appeal must be

dismissed under 28 U.S.C. § 1915(e)(2)(B) if it has no arguable basis in law or fact.

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because we determine that the appeal is

lacking in arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).

       The District Court is correct that this Court determined Bivins’ original complaint

was a § 1983 action. In our per curiam opinion, this Court stated: “Bivins argues that the

District Court misconstrued his complaint and argues that the District Court ‘sought to

evade . . . the real nature’ of his cause of action by labeling it either a § 1983 or a § 2254

action. We disagree . . . Here, the substance of Bivins’ complaint indicates that the

District Court properly construed it as filed pursuant to § 1983.” Furthermore, 28 U.S.C.

§ 1915 makes clear that filing fees shall be assessed, and makes no provision for a refund



                                               2
of such fees. See 28 U.S.C. § 1915(b)(1)(“[I]f a prisoner brings a civil action or files an

appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing

fee.”).

          As a result, we determine that Bivins’ appeal is lacking in arguable legal merit, and

will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).




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