Courtney v. Havard

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 31, 1995
• Docket: 95-10173
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10173 Summary Calendar __________________

GARY FRANCIS COURTNEY,

Plaintiff-Appellant,

versus

J. HAVARD, Parole Officer, ET AL.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:95-MC-4-C - - - - - - - - - -

(April 21, 1995)

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gary Francis Courtney seeks to appeal in forma pauperis

(IFP) in his appeal from the district court's denial of his

application to obtain pauper status to proceed with his civil

rights action. Liberally construed, Courtney argues that the

district court based its decision on erroneous information

concerning his economic status.

The denial of IFP status is reviewed for an abuse of

discretion. See Flowers v. Turbine Support Division, 507 F.2d

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. No. 95-10173 -2-

1242, 1243-44 (5th Cir. 1975). Whether a party may proceed IFP

in the district court is based solely upon economic criteria.

Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976). Poverty

sufficient to qualify does not require absolute destitution.

Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339

(1948).

Courtney presented credible evidence that the inmate trust

fund officer erroneously reported that the total deposits made to

his account in the 90-day period preceding his application was

$472.74. The evidence showed that Courtney had total deposits of

$55 in September, October, and November of 1994 and a balance in

his account of $28.46. The determination that Courtney did not

meet the economic criteria because he had deposits of $472.74 was

an abuse of discretion.

Accordingly, Courtney has presented a nonfrivolous issue

for appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983). IT IS ORDERED that his motion to proceed in forma

pauperis on appeal is GRANTED. IT IS FURTHER ORDERED that the

judgment of the district court is VACATED and the case is

REMANDED for further proceedings. See Clark v. Williams, 693

F.2d 381, 381-82 (5th Cir. 1982). Among the alternatives

available to the district court is the imposition of a partial

payment of the filing fee. See Green v. Estelle, 649 F.2d 298,

301-02 (5th Cir. 1981).