Thunderhorse v. Collier, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-20163

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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 11, 2020

Lyle W. Cayce
Clerk
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No. 19-20163
2
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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No. 19-20163
3
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 F
ED. 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 F
ED. 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.

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