                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2003

Drayer v. Atty Gen DE
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2517




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"Drayer v. Atty Gen DE" (2003). 2003 Decisions. Paper 90.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/90


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DPS- 5 & 6                                 REPORTED - NOT PRECEDENTIAL

             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                              NO. 03-2517
                           ________________

                         JOHN R. DRAYER, JR.,

                                     Appellant

                                      v.

   ATTORNEY GENERAL OF THE STATE OF DELAWARE; BUREAU CHIEF
    OF PRISONS, (BGO) HOWARD; SUSSEX CORRECTIONS INSTITUTE;
      KEARNY, Warden; SUSSEX VIOLATION OF PROBATION UNIT;
   GEORGE, Warden; DEPARTM ENT PAROLE & PROBATION; NESBIT, Ms.,
                             P.D. Supervisor
                 ____________________________________

              On Appeal From the United States District Court
                        For the District of Delaware
                        (D.C. Civ. No. 03-cv-00282)
                 District Judge: Honorable Kent A. Jordan
              _______________________________________

                              NO. 03-2518
                           ________________

                         JOHN R. DRAYER, JR.,

                                     Appellant

                                      v.

  ATTORNEY GENERAL OF THE STATE OF DELAW ARE; KEARNY, Warden;
  SUSSEX CORRECTIONAL INSTITUTION; DEPT. PAROLE & PROBATION;
      NESBIT, Ms., P.O. Supervisor; MATHEWS; FREEMAN; ABSHER;
                      BUREAU CHIEF OF PRISONS
               ____________________________________
                     On Appeal From the United States District Court
                               For the District of Delaware
                               (D.C. Civ. No. 03-cv-00307)
                        District Judge: Honorable Kent A. Jordan
                     _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   October 2, 2003
        Before: MCKEE, RENDELL AND GREENBERG, CIRCUIT JUDGES

                                (Filed November 26, 2003)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Appellant, John R. Drayer, Jr., appeals from the orders of the District Court for the

District of Delaware granting in forma pauperis (“IFP”) status and assessing initial filing

fees in each of his cases.

       Drayer was released from prison on March 17, 2003. He filed the § 1983

complaint in Civ. No. 03-00282 prior to his release on March 13. He filed the § 1983

complaint in Civ. No. 03-00307 after he was released. Drayer filed the same motion to

proceed IFP in each case, averring that he was in prison. The District Court granted the

IFP motions. In Civ. No. 03-00282, absent a prison account statement, the District Court

directed Drayer to pay the full filing fee. In Civ. No. 03-00307, the District Court

directed Drayer to pay an initial partial filing fee of $19.83 based on Drayer’s prison

account statement of record. Drayer filed these appeals.



                                             2
       Drayer then filed motions to vacate the IFP orders and motions to consolidate his

cases. On June 4, 2003, the District Court consolidated the cases and denied the motion

to vacate. The District Court determined that Drayer was subject to the Prison Litigation

Reform Act’s (“PLRA”) filing fee requirements because one of the complaints in the

consolidated case was filed while Drayer was still incarcerated. Reasoning that Drayer’s

subsequent release did not eliminate the filing fee obligations that accrued while Drayer

was in prison, the District Court directed Drayer to pay an initial partial filing fee of

$19.83. Noting that Drayer was no longer in prison, the District Court ordered Drayer to

file a standard (non-prisoner) IFP application with an affidavit with regard to the payment

of the balance of the filing fee. The District Court subsequently denied reconsideration of

its June 4, 2003 order. Although Drayer filed a standard IFP application with an affidavit,

he failed to pay the required initial partial filing fee of $19.83. On August 26, 2003, the

District Court dismissed Drayer’s cases without prejudice for Drayer’s failure to pay the

initial partial filing fee of $19.83.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.1 Drayer has been

granted leave to proceed IFP on appeal. Because Drayer’s appeals lack arguable merit,

we will dismiss them pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d



   1
     We are satisfied that Drayer’s premature notice of appeal ripened upon the District
Court’s dismissal of the action for failure to pay the initial partial filing fee. See Cape
May Greene, Inc., v. Warren, 698 F.2d 179 (3d Cir. 1989); see also In re Flanagan, 999
F.2d 753, 755-56 (3d Cir. 1995) (holding that dismissal “without prejudice” is a final,
appealable order where it effectively bars the plaintiff from litigating his claim).

                                               3
220, 223 (3d Cir. 2000).

       Drayer contends that he should not pay any filing fee because he was not in prison

when he filed his complaints and because he is indigent. See Informal Brief, at 9-10.

The PLRA provides that “if 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,” subject to

payment on an installment plan. 28 U.S.C. § 1915(b)(1)-(2). Courts have recognized that

“if a litigant is a prisoner on the day he files a civil action, the PLRA applies.” In re

Smith, 114 F.3d 1247, 121 (D.C. Cir. 1997). Here, the record clearly indicates that one of

the complaints in the consolidated case, namely Civ. No. 03-00282, was filed four days

prior to Drayer’s release. Thus, because Drayer filed suit prior to his release from prison,

he was subject to the PLRA payment provisions. We agree with the District Court’s

reasoning that once Drayer’s fee obligations under the PLRA accrued, his subsequent

release from prison did not relieve him of his obligation under the PLRA to pay the initial

fee of $19.83. Nor does Drayer’s alleged current inability to pay the initial filing fee of

$19.83 in the consolidated case, an amount he was capable of paying while he was still

incarcerated, relieve him of his obligation to pay that fee. Accordingly, the District Court

properly dismissed the consolidated case without prejudice upon Drayer’s failure to remit

the initial partial filing fee. If Drayer wishes to proceed with this suit, he can file his

complaint in the District Court along with the required $19.83 payment plus either the

remainder of the filing fee ($130.17) or a proper motion to proceed IFP with regard to his



                                               4
inability to pay that remaining amount.

      For these reasons, the appeals will be dismissed. Drayer’s pending motions are

denied.




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