Jackson v. Hershberger ( 1997 )

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
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