Jackson v. Hershberger

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 9 1997 TENTH CIRCUIT PATRICK FISHER Clerk

LOWELL EDWARD JACKSON, JR.,

Petitioner - Appellant, v. No. 96-1406 (D.C. No. 96-S-1309) G. L. HERSHBERGER, Warden, ( District of Colorado)

Respondent - Appellee.

ORDER

Before SEYMOUR, Chief Judge, PORFILIO, and MURPHY, Circuit Judges.

Lowell Edward Jackson, a federal prisoner, appeals from an order dismissing his

pro se 28 U.S.C. § 2241 habeas corpus action. The district court’s order was based on

Mr. Jackson’s failure to pay the partial filing fee of $5.00 ordered by the district court or

to show cause why he was indigent or has no means to pay the fee. On appeal, Mr.

Jackson argues he is indigent and the district court was without authority to order him to

pay the partial fee. Unfortunately for appellant he is wrong.

In 1996, Congress passed an amendment to 28 U.S.C. § 1915 under which the

district court was required to assess a partial payment of the filing fee even though it had

found Mr. Jackson was unable to prepay the entire filing fee. 28 U.S.C. § 1915(b)(1).

Had Mr. Jackson filed the affidavit the district court requested many times of him, he could have proceeded without payment of the partial fee. § 1915(b)(4). He did not

comply with any of those requests, however, and his action was properly dismissed

without prejudice. This dismissal permits Mr. Jackson to refile his petition if he complies

with the requirements of § 1915(b).

Because appellant has filed with this court a request for a “remand” and agreed to

pay the $5.00 fee in the district court, this appeal is DISMISSED. The remand shall issue

forthwith.

ENTERED FOR THE COURT

John C. Porfilio Circuit Judge

-2-