Opinion
Case No. 01-CV-304-JHP-SAJ.
March 17, 2006
ORDER
On February 10, 2006, Plaintiff filed a Notice of Appeal (Dkt. # 45) in this 42 U.S.C. § 1983 civil rights action. He also requested leave to proceed on appeal in forma pauperis. By Order filed February 23, 2006 (Dkt. # 48), the Court directed Plaintiff to file an amended motion for leave to proceed on appeal in forma pauperis. He was specifically ordered to provide the financial information required for determining whether he should be allowed to proceed on appeal without prepayment of fees and costs, and was advised that he had to include a certified copy of his trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the notice of appeal obtained from the appropriate official of each prison at which he is or was confined. See Dkt. # 48 (citing 28 U.S.C. § 1915(a)(2)). Since entry of the Court's Order, Plaintiff has filed two (2) motions for leave to proceed on appeal in forma pauperis (Dkt. #s 50 and 51). The amended motion, filed March 7, 2006 (Dkt. # 51), includes the required institutional accounting.
After reviewing the representations contained in the amended motion for leave to proceed in forma pauperis, the Court finds Plaintiff has funds sufficient to prepay the filing fee on appeal. According to Plaintiff's institutional accounting, as of March 1, 2006, Plaintiff had $697.48 in his institutional savings account. Pursuant to Okla. Stat. tit. 57, § 549(A)(5), funds from an inmate's savings account may be used for fees or costs in filing a federal action. Because Plaintiff has cash and securities in his prison accounts exceeding $695 and the filing fee for this appeal is $255, the Court finds Plaintiff's motions for leave to proceed in forma pauperis on appeal, as amended, should be denied. Within thirty (30) days of the entry of this Order, Plaintiff shall submit the $255 filing fee in full to the Clerk of this Court. Failure to pay the filing fee in compliance with this Order may lead to dismissal of this appeal.
The Court notes that on February 10, 2006, when he filed his notice of appeal, Plaintiff also had in excess of $500 in his institutional draw account. However, after filing the notice of appeal but before providing the financial accounting required to support his request to proceed on appeal in forma pauperis, Plaintiff suddenly depleted his draw account to $0.77.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1. Plaintiff's motions to proceed in forma pauperis on appeal (Dkt. #s 45 and 50), as amended (Dkt. # 51), are denied.
2. Within thirty (30) days of the entry of this Order, or by April 17, 2006, Plaintiff shall pay in full the $255.00 filing fee or show cause for his failure to do so.
3. The Clerk is directed to send a copy of this Order to the Tenth Circuit Court of Appeals.
SO ORDERED.