Opinion
Case No. 03-3335-JAR.
March 4, 2005
ORDER DENYING APPLICATION TO PROCEED WITHOUT PAYMENT OF FEES
This matter comes before the Court on plaintiff's application to proceed without payment of fees (Doc. 33). Plaintiff filed this action seeking $1.5 million in actual damages and an unspecified amount of compensatory and punitive damages for "Intentional infliction of Physical Emotional Duress," alleging that defendants "Conspired and Violated" his Fourth and Fifth Amendment rights during the course of an arrest. The Court dismissed plaintiff's case, and plaintiff now seeks to appeal the dismissal in forma pauperis.
The Court notes that plaintiff was previously permitted to proceed in this Court in forma pauperis. Pursuant to Rule 24 of the Federal Rules of Appellate Procedure:
A party who was permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis without further authorization, unless: (A) the district court — before or after the notice of appeal is filed — certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding. . . ."
In this instance, the Court finds that plaintiff "is not otherwise entitled to proceed in forma pauperis." At the time this Court originally permitted plaintiff to proceed in forma pauperis, he was incarcerated in a federal correctional institution in Waseca, Minnesota. After plaintiff filed this action, but before he filed the instant application to proceed without payment of costs, plaintiff was released from prison. Plaintiff currently resides in Las Vegas, Nevada. Thus, plaintiff stands in a significantly different financial position today, as compared to when he was incarcerated. Because of plaintiff's changed financial situation, plaintiff is not entitled to proceed as a pauper without additional authorization from the Court. Accordingly, the Court must scrutinize plaintiff's most recent application to proceed in forma pauperis to determine whether plaintiff is now financially entitled to such status.
See Armstrong v. San Antonio Housing Auth., No. 03-CA-1128, 2004 WL 2397577 at * 1 (W.D. Tex. Sep. 24, 2004) (examining plaintiff's most recent application to determine whether he may proceed in forma pauperis).
Proceeding in forma pauperis in a civil case "is a privilege, not a right — fundamental or otherwise." The circumstances under which an individual may proceed without payment of fees are set forth in 28 U.S.C. § 1915(a)(1), which provides that "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit . . . that the person is unable to pay such fees or give security therefor." The decision to grant or deny in forma pauperis status under § 1915 lies within the discretion of the court. Although the court must not act arbitrarily or on erroneous grounds in denying an application to proceed without payment of fees, the Tenth Circuit has held that in civil cases for damages, in forma pauperis status should be granted "sparingly."
Zhu v. Countrywide Realty Co., 148 F. Supp. 2d 1154, 1156 (D. Kan. 2001).
Id.
Id.
When a party seeks to appeal in forma pauperis, Rule 24 of the Federal Rules of Appellate Procedure directs that the party file such motion in the district court. The party must attach to the motion an affidavit that, inter alia, "shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs." In turn, Form 4 of the Appendix of Forms (Form 4) requires a party to provide information regarding: (1) his income and the sources thereof; (2) his employment history; (3) the amount of cash he has; (4) his assets including homes and motor vehicles; (5) all money owed to him by others; (6) individuals he supports financially; (7) his average monthly expenses; and (8) any attorney's fees paid in connection with the case.
Id.
Fed.R.App.P. Form 4.
In this case, plaintiff has not provided the information required by Form 4. Instead, plaintiff has attached a form disclosing that he currently has $8.79 in cash, and owns 100,000 shares of common stock in Steven G. Trapp Co. with a par value of $1,000. Plaintiff has provided no information on his current employment, his employment history, his assets, or his average monthly expenses. As such, the Court cannot determine whether plaintiff is capable of paying the fees associated with his appeal. Consequently, the Court denies without prejudice plaintiff's application to proceed without payment of fees. Because the denial is without prejudice, plaintiff may file a new application for leave to appeal in forma pauperis, to which he should attach an affidavit providing the information required by Rule 24 of the Federal Rules of Appellate Procedure.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's application to proceed without payment of fees (Doc. 33) is DENIED without prejudice.
IT IS SO ORDERED.