                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 07, 2008
                             No. 06-16396                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

               D. C. Docket No. 06-00616-CV-ORL-22-KRS

EDWARD J. VALE,


                                                           Plaintiff-Appellant,

                                  versus

INTERNAL REVENUE SERVICE,
MARK EVERSON, Commissioner,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (July 7, 2008)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:
       Edward J. Vale, proceeding pro se, appeals the district court’s denial of his

motion for leave to proceed in forma pauperis (“IFP”) and dismissal of his civil

action under 26 U.S.C. § 7422(a) for failure to comply with a court order.1

Because Vale did not file an amended notice of appeal after the district court

denied his Federal Rule of Civil Procedure 60(b) motion for post-judgment relief,

we lack jurisdiction to review that matter. Since Vale complied with the magistrate

judge’s order requiring an accounting statement pursuant to 28 U.S.C.

§ 1915(a)(2), the district court abused its discretion in denying his motion for leave

to proceed in forma pauperis (IFP) and in sua sponte dismissing the complaint.

Accordingly, we REVERSE and REMAND.

                                      I. BACKGROUND

       On 4 May 2006, Vale, a Florida prisoner, filed a pro se complaint against the

Internal Revenue Service and its Commissioner (collectively “IRS”) seeking a

refund of $744 in overpaid taxes under § 7422(a). R1-1 at 1-2. Vale filed an

affidavit of indigency, which the district court construed as a motion for leave to


        1
         In connection with his appeal, Vale has filed three motions in our court: (1) to vacate or
reconsider our order granting appellees’ motion for an extension of time to file their brief; (2) to
strike appellees’ brief as untimely, insufficient, and irrelevant; (3) to stay decision pending state
court grievance proceedings. Finding those motions to be without merit they are DENIED. Also,
the appellees argue that we should affirm the judgment because the district court lacked jurisdiction
over Vale’s complaint. However, this jurisdictional issue was not addressed in the district court and
is not before us on appeal. Therefore, this issue is left for the district court to address in the first
instance on remand. See Bartholomew v. AGL Resources, Inc., 361 F.3d 1333, 1342 n.6 (11th Cir.
2004).

                                                   2
proceed IFP. R1-3. He attached an inmate account statement from the Florida

Department of Corrections (“FDOC”) for the period between 30 September 2005

and 30 March 2006. Id., exh. 2. On 26 June 2006, a magistrate judge issued an

order requiring Vale to submit an accounting of the entire six-month period

preceding the filing of his complaint, specifically from 8 November 2005 to 8

May 2006. R1-4 at 2. It warned that the failure to do so within 20 days would

result in the dismissal of the action. Id.

      Vale filed a motion for an extension of time to file the account statement,

which the magistrate judge granted until 29 September 2006. R1-5, 6. On 29

August 2006, Vale filed an account statement for the period between 4

February 2006 and 4 August 2006. R1-7, exh. 2. On 8 September 2006, the

magistrate judge issued an order noting that Vale had not supplied a complete

accounting of the six-month period preceding the filing of his complaint and

ordered Vale to pay the full filing fee or file the account statement within 20 days.

R1-8. On 13 September 2006, the magistrate judge issued another order noting

that Vale had made a partial payment of $50 towards the filing fee and ordered

Vale to pay the remainder of the filing fee or file the account statement as required

by the previous orders within 20 days. R1-9.




                                             3
      On 15 September 2006, the IRS filed a motion to dismiss for improper

service and lack of subject matter jurisdiction. R1-10. On 26 September 2006,

Vale filed a motion for a 30-day extension of time to file the account statement,

which the magistrate judge denied. R1-12, 13. On 4 October 2006, the magistrate

judge issued a report recommending the denial of Vale’s motion to proceed IFP

and the dismissal of the case without prejudice because Vale failed to comply with

its previous orders. R1-14 at 2-3.

      Thereafter, Vale responded to the IRS’s motion to dismiss and filed a motion

for rehearing, arguing that his failure to file the proper account statement was the

result of circumstances beyond his control and resubmitted a motion for a time

extension. R1-16, 17 at 1-2. The magistrate judge construed his motion for

rehearing as a motion for reconsideration, which it denied. R1-18. The district

court issued an order adopting the magistrate judge’s report, denied Vale’s motion

to proceed IFP, and dismissed the complaint without prejudice. R1-19.

      On 4 December 2006, Vale filed a notice of appeal. R1-20. He later filed a

motion to reopen the case and motion for relief from judgment under Rule 60(b),

arguing that his failure to file a complete accounting of the six months preceding

the complaint was a result of excusable neglect. R1-22, 23. IRS responded to

Vale’s motions to reopen and for relief from judgment, arguing that the district



                                           4
court lacked jurisdiction to consider his complaint. R2-30. Vale filed a motion to

strike the defendants’s response as untimely, which the defendants argued was

meritless. R2-34, 36. On 4 April 2007, the district court denied Vale’s motions to

reopen and for relief from judgment because Vale failed to show good cause. R2-

37.

      On 23 January 2008, the IRS filed a motion for an extension of time to file

an appellate brief, which we granted. Vale filed a response to the motion, which

we returned as moot in light of our then recent order. Attached to his reply brief,

Vale included a motion to vacate or reconsider our order granting the extension of

time, arguing that the Federal Rules of Appellate Procedure did not provide a

procedure to move for an extension of time and that we should have considered his

response to the motion. It also contained a motion to strike the IRS’s brief as

untimely, insufficient, and irrelevant. Its appendix contained a motion to stay the

appeal pending the decision of state court grievance proceedings. Vale argued that

moving for a stay in the district court was impracticable. He asserted that the

proceedings may establish the FDOC’s administrative failure regarding his motion

to proceed IFP.




                                          5
                                  II. DISCUSSION

A.    Whether we have jurisdiction to review the district court’s order
      denying Vale’s post-judgment motion under Federal Rule of Civil
      Procedure 60(b)

      The IRS argues that the district court’s order denying Vale’s motion for

relief under Rule 60(b) was a final appealable order, requiring the filing of a

separate notice of appeal. It asserts that Vale failed to amend his notice of appeal

to include the district court’s order denying his Rule 60(b) motion or file a separate

notice of appeal. Thus, it concludes that we lack jurisdiction to review the district

court’s denial of his motion for relief.

      We review jurisdictional issues de novo. United States v. Cartwright, 413

F.3d 1295, 1299 (11th Cir. 2005) (per curiam). “The timely filing of a notice of

appeal is a mandatory prerequisite to exercise of appellate jurisdiction.” United

States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005) (per curiam) (citation

omitted). Generally, when a post-judgment motion is filed after the notice of

appeal from the underlying judgment, a separate notice of appeal is required to

preserve appellate review. Green v. Union Foundry Co., 281 F.3d 1229, 1233

(11th Cir. 2002). Nevertheless, a pro se appellant’s brief may substitute as

adequate notice in such a case if it is filed within the appropriate time period




                                           6
prescribed by Federal Rule of Appellate Procedure 4(a). Finch v. City of Vernon,

845 F.2d 256, 259-60 (11th Cir. 1998) (per curiam).

       Vale concedes that he did not file a separate or amended notice of appeal of

the district court’s denial of his post-judgment motions to reopen and for relief

under Rule 60(b). Moreover, he did not submit his appellate brief until 1 October

2007, almost six months after the district court’s 4 April 2007 order and well after

the 60-day period prescribed by Appellate Rule 4(a)(1)(B). Vale did not properly

perfect an appeal from that order, thus we will not consider the district court’s

ruling regarding Vale’s post-judgment motions on appeal.

B.     Whether the district court abused its discretion in denying Vale’s
       motion for leave to proceed IFP for failure to file an accounting
       statement and in sua sponte dismissing the complaint

       Vale argues that the district court abused its discretion in dismissing his

complaint for failure to comply with a court order because he did not willfully

disobey the requirements of 28 U.S.C. § 1915(a) and paid a partial filing fee of $50

in good faith.2 He maintains that he should not be held responsible for the

administrative errors of the FDOC, relying on Kilgo v. Ricks, 983 F.2d 189 (11th

Cir. 1993). Vale contends that he filed a grievance with the FDOC and diligently



       2
         Vale’s brief also contains arguments regarding the district court’s initial denial of his
motion for leave to appeal IFP. That issue is now moot as the district court subsequently granted
the motion, which we recognized in our order of 4 December 2007.

                                                7
and reasonably attempted to resolve the administrative problem. He asserts that

the public interest in expeditious resolution and favoring the disposition of cases

on the merits outweighs the district court’s need to manage its docket and that the

district court had a less dramatic alternative than dismissal, including sanctions.

He posits that the district court abused its discretion in dismissing the action before

his administrative grievance was resolved.

      We review the district court’s denial of a motion for leave to proceed IFP for

abuse of discretion. Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th

Cir. 2004) (per curiam). Although the district court “has wide discretion in

denying an application to proceed IFP . . . in civil cases for damages . . . the courts

should grant the privilege sparingly” and “ must not act arbitrarily [or] deny the

application on erroneous grounds.” Id. at 1306-07.

      Congress passed the Prisoner Litigation Reform Act of 1995 (“PLRA”) “in

an effort to stem the flood of prisoner lawsuits in federal court.” Wilson v.

Sargent, 313 F.3d 1315, 1318 (11th Cir. 2002) (per curiam) (quotation omitted).

“[T]he PLRA amended portions of 28 U.S.C. § 1915 to require the payment of

filing fees by prisoners proceeding [IFP] in the district court.” Id. In addition to

an affidavit of indigency, prisoners seeking to bring a civil action without

prepayment of fees must “submit a certified copy of the trust fund account



                                           8
statement (or institutional equivalent) for the prisoner for the [six]-month period

immediately preceding the filing of the complaint . . . from the appropriate official

of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).

      Vale’s initial account statement covered from 30 September 2005 to 30

March 2006, and thus the magistrate judge properly ordered Vale to file a complete

accounting for the six-months preceding the filing of his complaint, specifically

from 8 November 2005 to 8 May 2006. See R1-3, exh. 2; R1-4 at 1-2. Vale’s

second submission, filed on 31 August 2006, covered from 4 February 2006 to 4

August 2006. See R1-7, exh. 2. Thus, his submissions, in aggregate, covered from

30 September 2005 to 4 August 2006, including the entire six-months preceding

the filing of the complaint. See § 1915(a)(2). The district court denied Vale’s

application on erroneous grounds because Vale complied with the magistrate

judge’s orders on 31 August 2006, well before the 28 September 2006 extended

deadline. Therefore, the district court abused its discretion in denying Vale’s

motion for leave to proceed IFP. See Martinez, 364 F.3d at 1307. Additionally,

the district court dismissed Vale’s complaint sua sponte for failure to comply with

the magistrate judge’s numerous orders. R1-19. Since Vale actually complied

with the magistrate judge’s request, the district court also abused its discretion in

this regard. See Wilson, 313 F.3d at 1318, 1320-22 (reviewing district court’s sua



                                           9
sponte dismissal of prisoner’s complaint for failure to comply with its IFP order for

abuse of discretion).

                                III. CONCLUSION

      While Vale did not submit a complete account statement for the six-month

period preceding the filing of his complaint, his submissions in aggregate covered

the entire six-month period from 8 November 2005 to 8 May 2006. Thus, the

district court abused its discretion in denying his motion for leave to proceed IFP

and sua sponte dismissing the complaint because Vale complied with the

requirements of 28 U.S.C. § 1915(a)(2). Accordingly, we

      REVERSE and REMAND.




                                          10
