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Church v. Attorney General of the Commonwealth of Virginia

September 10, 1997

WILLIAM LEBRON CHURCH, PLAINTIFF-APPELLANT,

v.

ATTORNEY GENERAL OF THE COMMONWEALTH OF VIRGINIA; VIRGINIA DEPARTMENT OF CORRECTIONS; EDWARD W. MURRAY, DIRECTOR; VIRGINIA PAROLE BOARD; COUNTY OF AMELIA, VIRGINIA; THOMAS V. WARREN, JUDGE; COMMONWEALTH OF VIRGINIA, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CA-95-612)

Before HALL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

ERVIN, Circuit Judge

Argued: October 30, 1996

Reversed and remanded by published opinion. Judge Ervin wrote the opinion, in which Judge Hall and Senior Judge Butzner joined.

OPINION

William Church, a prisoner, appeals the order of the district court for the Eastern District of Virginia dismissing his complaint filed pursuant to 42 U.S.C. Section(s) 1983 as frivolous under 28 U.S.C. Section(s) 1915(d). Church requests that this Court resolve the question of whether he is required to pay the applicable filing fees underSection(s) 804(b) of the Prison Litigation Reform Act (PLRA). 28 U.S.C. Section(s) 1915(b)(1). For the reasons hereinafter explored, we hold that Section(s) 804(b) should not be applied retroactively to Church, that the district court erred by dismissing Church's complaint, and that this case should be remanded to the district court with Church having leave to amend his pleadings pursuant to Fed. R. Civ. P. 15.

I.

Church filed a complaint against the Attorney General of Virginia and other state officials alleging that he had been physically mistreated in prison and that he was the victim of conspiracies to unlawfully convict him and to deny him parole. In an October 19, 1995, memorandum, the court below granted Church's request to proceed in forma pauperis (IFP) and only required him to make partial payment of the filing fee. In the same memorandum the district court stated that Church's claims would be dismissed as frivolous. Church v. Virginia, CA 3:95CV612, slip op. at 1 (E.D. Va. Oct. 19, 1995). On the same day, the court issued an order dismissing the action, J.A. at 21, prompting this appeal. *fn1

While the instant case was pending on appeal, the Prison Litigation Reform Act (PLRA or the Act) was passed by Congress and signed into law on April 26, 1996. Section 804(b) of the PLRA amends 28 U.S.C. Section(s) 1915 to require the full payment of a filing fee by prisoners filing a civil action or an appeal IFP.

Church filed his notice of appeal on October 27, 1995. We directed Church to address in his brief the question of whether the filing fee requirement of the PLRA applies retroactively to a case pending on appeal on the effective date of the Act. Here, we first examine the primary issue on appeal: the retroactive effect of the PLRA. Next, we conclude that the court below erred by dismissing Church's complaint after -- as opposed to before -- accepting a partial filing fee. Because we instruct the district court to allow Church to amend his pleadings, we will not address the merits of Church's complaint.

II.

A.

The relevant portion of 28 U.S.C. Section(s) 1915, as amended by Section(s) 804 of the PLRA, provides:

(b)(1) Notwithstanding subsection (a), 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. The court shall assess and, when funds exist, collect, as a partial payment of any court fees ...


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