Michael Calvin Mustain, D/B/A Mike Mustain Sheet Metal v. Judge Walter J. Krasniewski

812 F.2d 1407, 1987 U.S. App. LEXIS 1329, 1987 WL 36620

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 26, 1987
• Docket: 86-3754
• Status: Unpublished

Opinion

812 F.2d 1407

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Michael Calvin MUSTAIN, d/b/a Mike Mustain Sheet Metal,
Plaintiff-Appellant,
v.
Judge Walter J. KRASNIEWSKI, Defendant-Appellee.

No. 86-3754.

United States Court of Appeals, Sixth Circuit.

Jan. 26, 1987.

Before KEITH, KRUPANSKY and GUY, Circuit Judges.

ORDER

This pro se appellant appeals from an order of the district court which denied his application for leave to proceed in forma pauperis. He now moves for the appointment of counsel. That motion has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and the informal brief submitted by appellant, this panel unanimously agrees that oral argument is not necessary in this case. Rule 34(a), Federal Rules of Appellate Procedure.

On July 22, 1986, appellant filed an application for leave to proceed in forma pauperis in the district court in anticipation of his institution of a cause of action of an unspecified nature against appellee. The district court, however, concluded that appellant had sufficient resources to bear the costs of maintaining his action and denied the request for in forma pauperis status. Appellant now seeks review of that order by this Court.

The scope of this Court's review of an order denying an application for leave to proceed in forma pauperis is limited to the determination of whether the district court abused its discretion in taking that action. Foster v. United States, 344 F.2d 698 (6th Cir.1965); Jefferson v. United States, 227 F.2d 723 (9th Cir.1960). Generally, however, the district court's discretion in such matters is not overly broad with the granting of permission to proceed in forma pauperis being the preferred disposition upon the applicant's submission of a facially sufficient affidavit of indigency. Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972), cert. denied sub nom., Long v. Carlson, 410 U.S. 958 (1973). When applied to the facts of this appeal, those standards indicate that the district court did not err in denying the application for leave to proceed in forma pauperis. Specifically, the affidavit of indigency filed in the district court indicates that appellant has sufficient financial resources, particularly in the form of his interest in a business and real property, to bear the cost of his action against appellee.

Accordingly, it is ORDERED that the motion for appointment of counsel be and hereby is denied. Furthermore, it is ORDERED that the order of the district court entered July 22, 1986, be and hereby is affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.