                                               Filed:   May 31, 2000

                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 99-6398



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BYRON JONES, a/k/a Carl Lee, a/k/a “B”,

                                             Defendant - Appellant.



                                ORDER



     Byron Jones seeks to appeal an order of the district court

denying in part his motion for the return of property pursuant to

Federal Rule of Criminal Procedure 41(e).1   We conclude that Jones’

motion, filed after his conviction, is a civil action for purposes

of the filing fee provision of the Prisoner Litigation Reform Act

(PLRA) of 1995.    See Prison Litigation Reform Act of 1995, Pub. L.

No. 104-134, § 804(a), 110 Stat. 1321-66, 1321-73 to -74 (1996)

     1
       Rule 41(e) provides in relevant part that “[a] person
aggrieved by an unlawful search and seizure or by the deprivation
of property may move the district court for the district in which
the property was seized for the return of the property on the
ground that such person is entitled to lawful possession of the
property.”
(amending 28 U.S.C.A. § 1915 (West Supp. 1999)).                   Therefore, the

filing fee provision of the PLRA applies to Jones’ appeal.



                                     I.

     Jones seeks the return of property seized in a search incident

to his arrest in April 1992.         He was convicted and sentenced in

1993; this court affirmed his conviction in 1994.                     See United

States   v.   Jones,   16   F.3d   413       (4th   Cir.   1994)    (per   curiam)

(unpublished table decision).       He filed this Rule 41(e) motion in

June 1997.     As is relevant here, the district court denied the

motion in part and Jones filed a timely notice of appeal.                    Jones

moves to proceed on appeal in forma pauperis.

     The PLRA amended the in forma pauperis statute, 28 U.S.C.A. §

1915 (West Supp. 1999), such that a prisoner who brings “a civil

action”--a term not defined in the statute--or an appeal must pay

the full filing fee.2       28 U.S.C.A. § 1915(b)(1).          Accordingly, we

must determine whether a post-conviction motion for the return of

property is a “civil action” for purposes of § 1915(b)(1).

     Rule 41(e) motions are civil insofar as they do not involve

the punishment of crime but rather seek property or money from the

government.    See Peña v. United States, 122 F.3d 3, 4-5 (5th Cir.


     2
       The PLRA allows the prisoner to pay the filing fee in
installments through his prison account.        See 28 U.S.C.A.
§ 1915(b)(1), (2). Further, a prisoner can bring a civil action or
appeal even if he has no assets and no means to pay the fee. See
id. § 1915(b)(4).

                                         2
1997).    And, in the context of determining the proper venue for

Rule 41(e) motions, we have previously held that a post-conviction

Rule 41(e) motion is a civil action.         See United States v. Garcia,

65 F.3d 17, 20-21 (4th Cir. 1995).          We have also concluded that a

Rule 41(e) motion is civil with regard to the applicable appeal

period.   See id. at 18 n.2; see also United States v. Solis, 108

F.3d 722, 722 (7th Cir. 1997) (stating that “a post-conviction Rule

41(e) motion will be treated as a civil equitable proceeding”). In

fact, Jones concedes that Rule 41(e) motions are civil in nature.

He nevertheless contends that the civil nature of these actions

does not necessarily mean that they are “civil actions” within the

meaning of the PLRA.    Instead, Jones argues that Congress intended

for the PLRA to encompass only prisoner civil rights cases, such as

actions   brought   under   42   U.S.C.A.    §   1983   (West   Supp.   1999).

Although we are aware that Congress primarily targeted prisoner

civil rights cases in enacting the filing fee provision of the

PLRA, see Smith v. Angelone, 111 F.3d 1126, 1130 (4th Cir. 1997),

the text of the Act is not limited to such actions.                 Instead,

Congress chose to make this filing fee provision applicable to all

“civil action[s].”     As we have already concluded in different

contexts that post-conviction Rule 41(e) motions are civil actions,

we now extend that reasoning and hold that such motions are civil




                                     3
actions for purposes of § 1915(b)(1) as well.3                   See Peña, 122 F.3d

at 4-5.

     Jones argues that we should treat Rule 41(e) motions as we do

habeas corpus actions--recognizing that habeas corpus actions are

treated as civil in some regards, but holding that they are not

civil actions for purposes of § 1915(b)(1).                   See Smith, 111 F.3d at

1130-31.       However, the reasons for excluding habeas actions from

the purview of the fee provision of the PLRA do not apply to Rule

41(e) motions.          See Peña, 122 F.3d at 5.          For example, in Smith we

noted       that    habeas   actions   are       a   unique   hybrid   of   civil   and

criminal.          See Smith, 111 F.3d at 1130.4         Also, while we assumed in

Smith that Congress could not have intended the inequitable result

of barring access to habeas relief as a result of the “three

strikes” provision of the PLRA, Rule 41(e) motions have not had a

similarly “long tradition of ready access of prisoners.”                       Id. at

1131 (internal quotation marks omitted).


        3
       We stress that our holding is limited to post-conviction
Rule 41(e) motions. Cf. Fed. R. Crim. P. 41(e) (stating that a
Rule 41(e) motion brought during criminal proceedings “shall be
treated also as a motion to suppress”).
        4
      Jones argues that Rule 41(e) motions are a procedural rarity
because the jurisdiction of the district court to hear a Rule 41(e)
motion is ancillary to its criminal jurisdiction and because Rule
41(e) motions are not independent causes of action but rather are
a civil component of criminal proceedings.           However, the
jurisdiction of a district court to entertain post-conviction Rule
41(e) motions is civil, and is not ancillary to its criminal
jurisdiction.   See Garcia, 65 F.3d at 20.      Further, a person
against whom no criminal proceedings are contemplated may bring a
Rule 41(e) motion. See id.

                                             4
                                     II.

     Accordingly, if Jones is unable to pay the full filing fee, he

may apply to pay the fee in installments by filing the required

PLRA forms with the office of the clerk of this court within twenty

days.5    Upon receipt of either the filing fee or the forms, we will

proceed to consider the merits of Jones’ appeal.

     We     further   order   that    our       ruling   shall     be     applied

prospectively only and shall not affect those post-conviction

Rule 41(e) appeals in which the appellant has already been granted

in forma pauperis status.

     Entered     at   the   direction      of    Judge   Wilkins        with   the

concurrences of Judge Motz and Judge King.

                                  FOR THE COURT



                                  ___________________________
                                            Clerk




     5
       Our clerk of court is sending Jones the required PLRA forms
along with a copy of this order.

                                      5
