Case: 19-20163        Document: 00515523418             Page: 1      Date Filed: 08/11/2020




             United States Court of Appeals
                  for the Fifth Circuit                                United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                     No. 19-20163                       August 11, 2020
                                                                         Lyle W. Cayce
                                                                              Clerk
 Iron Thunderhorse,

                                                                  Plaintiff—Appellant,

                                          versus

 Bryan Collier; Lorie Davis; Chaplain Rutledge; Laura
 Burgess,

                                                               Defendants—Appellees.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:18-CV-1720


 Before Dennis, Southwick, and Engelhardt, Circuit Judges.
 Per Curiam:*
         Iron Thunderhorse, Texas prisoner # 00624391, moves for leave to
 proceed in forma pauperis (IFP) on appeal from the dismissal of his civil suit
 under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized
 Persons Act. The district court granted his motion to dismiss the complaint.


         *
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
 not be published and is not precedent except under the limited circumstances set forth in
 5TH CIR. R. 47.5.4.
Case: 19-20163       Document: 00515523418         Page: 2     Date Filed: 08/11/2020




                                   No. 19-20163


 However, while Thunderhorse requested voluntary dismissal without
 prejudice, the district court dismissed the case with prejudice.
        By moving to proceed IFP, Thunderhorse is contesting the district
 court’s certification that his appeal is not taken in good faith. See Baugh v.
 Taylor, 117 F.3d 197, 202 (5th Cir. 1997); see also 28 U.S.C. § 1915(a)(3). Our
 inquiry is limited to whether the appeal “involves legal points arguable on
 their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215,
 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
        Thunderhorse argues that the district court wrongly found that he did
 not financially qualify as a pauper. However, the district court did not decide
 that Thunderhorse failed to prove his indigence. Rather, the district court
 found that the appeal was not taken in good faith because it did not present a
 nonfrivolous issue for appeal. To obtain leave to proceed IFP, he had to show
 both that he is impecunious and that the appeal is taken in good faith. See
 Howard, 707 F.2d at 220.
        He additionally suggests that the district court’s denial of IFP status
 prevented him from proceeding with an appeal or controlling the prosecution
 of his case. However, a finding that an inmate does not qualify for IFP status
 does not preclude him from accessing the courts, see Norton v. Dimazana, 122
 F.3d 286, 290-91 (5th Cir. 1997), or implicate his ability to proceed pro se, see
 28 U.S.C. § 1654.
        Thunderhorse contests the district court’s determination that his
 complaint should be dismissed with prejudice because he sought to reiterate
 claims that he raised in a prior proceeding. The district court found that
 Thunderhorse’s request for voluntary dismissal operated as an adjudication
 on the merits.
        The record supports that the pleading filed by Thunderhorse seeking
 the voluntary dismissal of his complaint was a motion under Federal Rule of




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Case: 19-20163      Document: 00515523418         Page: 3     Date Filed: 08/11/2020




                                   No. 19-20163


 Civil Procedure 41(a)(2) rather than a notice of dismissal under Federal Rule
 of Civil Procedure 41(a)(1). However, it appears that the district court found
 that the case should be dismissed with prejudice under the “two-dismissal”
 rule of Rule 41(a)(1)(B), which does not apply to motions pursuant to Rule
 41(a)(2). See FED. R. CIV. P. 41(a)(2); Am. Cyanamid Co. v. McGhee, 317 F.2d
 295, 297-98 (5th Cir. 1963). While Rule 41(a)(2) gives the district court the
 discretion to convert a motion to dismiss without prejudice to a dismissal
 with prejudice, the dismissal may not rely on Rule 41(a)(1)(B), see FED. R.
 CIV. P. 41(a)(2); Am. Cyanamid Co., 317 F.2d at 297-98, and the district court
 must allow the plaintiff the opportunity to retract his motion and to reject the
 condition of dismissal with prejudice, see Bell v. Keystone RV Co., 628 F.3d
 157, 163 n.4 (5th Cir. 2010).
        Accordingly, the district court wrongly dismissed the case with
 prejudice by treating Thunderhorse’s pleading as arising under Rule 41(a)(1)
 or incorrectly applying the “two-dismissal” rule to his Rule 41(a)(2) motion.
 His challenge to that dismissal presents a nonfrivolous issue for appeal. See
 Howard, 707 F.2d at 220. The record supports that he is financially eligible
 to proceed IFP. See § 1915(a)(1); Adkins v. E.I. DuPont de Nemours & Co., 335
 U.S. 331, 339-40 (1948).
        Thus, Thunderhorse’s motion to proceed IFP is GRANTED. See
 Baugh, 117 F.3d at 202. Because the merits of the appeal are inextricably
 intertwined with the district court’s certification decision, the judgment
 dismissing Thunderhorse’s complaint with prejudice is VACATED. See id.
 We DISPENSE with additional briefing and REMAND the case to the
 district court for further proceedings.




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