Lemons v. K.C. MO. Police , 158 F. App'x 159 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
December 13, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
JOHN E. LEMONS,
Plaintiff-Appellant,
v.
K.C. MO. POLICE, BOARD OF
COMMISSIONERS; DET. REED;
No. 05-1254
RAMONA LEWIS; TACO BELL IN
(D.C. No. 05-cv-00626-ZLW)
COUNTY OF CLAY, MO; CLAY
(D. Colo.)
COUNTY SHERIFF DEPARTMENT,
two unknown det. who tried to make
me sign the three year
plea-bargain...from the K.C. MO
Police Department,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-Appellant John E. Lemons, appearing pro se, filed a complaint in
the district court against various state officials and Taco Bell. The district judge
ordered Mr. Lemons to submit his motion to proceed in forma pauperis (IFP) on
the proper form within thirty days. Mr. Lemons filed with the district court a
“Motion for Appeal and Mistrials,” in which he claimed he was granted leave to
proceed pursuant to 28 U.S.C. § 1915 in Clay County, Missouri. As a result, the
district court denied Mr. Lemons’s claim for IFP status and dismissed his
complaint without prejudice. This appeal followed.
I. Discussion
Section 1915(a) states that a district court “may authorize the
commencement . . . of any suit [or] action . . . without prepayment of fees or
security therefor, by a person who submits an affidavit that includes a statement
of all assets such [person] possesses that the person is unable to pay such fees or
give security therefor.” See also Lister v. Dep’t of the Treasury, 408 F.3d 1309,
1312 (10th Cir. 2005) (noting that section 1915(a) applies to all persons applying
for IFP status). Thus, “to succeed on a motion to proceed IFP, the movant must
show a financial inability to pay the required filing fees.” Id. (emphasis added.)
The district court does not abuse its discretion in denying IFP status for failure to
fill out the proper forms or to otherwise provide the district court with the
requisite information. See id. at 1313. Mr. Lemons did not fill out the proper
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forms in this case despite the district court’s previous order directing Mr. Lemons
to “file on the proper, Court-approved form a motion and affidavit for leave to
proceed pursuant to 28 U.S.C. § 1915.” Accordingly, the district court correctly
dismissed Mr. Lemons’s complaint without prejudice.
While the denial of leave to proceed IFP is itself a final, appealable order
over which we have jurisdiction, Roberts v. U.S. Dist. Ct., 339 U.S. 844, 845
(1950) (per curiam), dismissal of a complaint without prejudice is generally not
final or appealable, Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th
Cir. 2001). “The critical determination as to whether an order is final is whether
plaintiff has been effectively excluded from federal court under the present
circumstances.” Id. (quotations, alteration omitted). Mr. Lemons has not been
effectively excluded from federal court.
According to the district court order denying his request for IFP status and
dismissing his complaint without prejudice, Mr. Lemons may initiate a new action
by 1) refiling his complaint and 2) paying the $250.00 filing fee required under 28
U.S.C. § 1914 or submitting a completed motion and affidavit for leave to
proceed pursuant to 28 U.S.C. § 1915 on the proper, Court-approved form, which,
along with the instructions for the form, can be found in the District Court for the
District of Colorado’s Guide for Filing a Civil Suit. We therefore lack
jurisdiction to consider the merits of Mr. Lemons’s complaint.
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III. Conclusion
We therefore DISMISS his appeal. We conclude that Mr. Lemons has
provided this court with sufficient information to ascertain his financial status and
therefore GRANT his motion for leave to proceed on appeal pursuant to § 1915. 1
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
1
Because we are dismissing this appeal, we also DISMISS as moot any
other requests contained in Mr. Lemons’s motion pursuant to Fed. R. Civ. P. 9.
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