Grimes v. TCF Bank ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 3, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEROME L. GRIMES,
Plaintiff - Appellant,
v. No. 19-1078
(D.C. No. 1:19-CV-00171-GPG)
TCF BANK, (D. Colo.)
Defendant - Appellee.
_________________________________
JEROME L. GRIMES,
Plaintiff - Appellant,
v. No. 19-1082
(D.C. No. 1:19-CV-00268-GPG)
COLORADO SPRINGS CITY (D. Colo.)
COMMISSIONERS,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, KELLY, and MORITZ, Circuit Judges.**
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
Plaintiff-Appellant Jerome Grimes appeals from the denial of two motions to
proceed in forma pauperis (IFP) by the district court. We consolidate his appeals for the
purposes of this opinion in light of their interrelated nature. Fed. R. App. P. 3(b)(2).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Background
Mr. Grimes is a plaintiff in two separate federal lawsuits in which he is proceeding
pro se. Mr. Grimes moved in both lawsuits to proceed IFP pursuant to 28 U.S.C.
§ 1915(a)(1). See Grimes v. TCF Bank, No. 19-1078, at 1 Rawle 26–30; Grimes v. Colo.
Springs City Comm’rs, No. 19-1082, at 2 Rawle 2–6. The court in Grimes v. TCF Bank, No.
19-cv-00171-GPG (D. Colo. Jan. 24, 2019) denied his motion. See TCF Bank, No. 19-
1078, at 1 Rawle 31–32. It found, based on Mr. Grimes’s affidavit accompanying his IFP
motion, that his total monthly income was $2,275, which included a $1,500 monthly
student loan, that his total monthly expenses were $1,306, and that he had an additional
$4,500 in a savings account with Defendant TCF Bank. Id. at 31. Even accepting his
vague allegation as true that TCF Bank was holding his student loan payment “hostage,”
the district court nevertheless found his savings account held sufficient assets to allow
him to pay the $400 filling fee. Id. at 32. The following month, the district court in
Grimes v. Colorado Springs City Commissioners, No. 19-cv-00268-GPG (D. Colo. Feb.
15, 2019) similarly denied Mr. Grimes’s motion, finding that his assets were sufficient to
cover his $400 filing fee in that case as well. See Colo. Springs City Comm’rs, 19-1082,
at 1 Rawle 31–32.
2
Mr. Grimes timely appealed both determinations, arguing the district court erred
by failing to recognize his income was non-taxable. TCF Bank, No. 19-1078, at 1 Rawle 33
& Aplt. Br. 4; Colo. Springs City Comm’rs, No. 19-1082, at 1 Rawle 46 & Aplt. Br. 4. In
addition, Mr. Grimes has moved to proceed IFP on appeal, and he has included with his
motions new affidavits and accompanying statements of his income, assets, and expenses.
Discussion
A. The District Court Did Not Abuse Its Discretion
Although not a final order, the denial by a district court of an IFP application is
appealable as a collateral order under the Cohen doctrine. Lister v. Dep’t of Treasury,
408 F.3d 1309, 1310 (10th Cir. 2005); see Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546–47 (1949). The district court may not act arbitrarily in denying an IFP
motion, nor may its denial be based on erroneous grounds. Lister, 408 F.3d at 1313. We
review such orders for abuse of discretion. Id. at 1312.
Section 1915(a)(1) requires the person submitting an affidavit to proceed IFP to
state all assets he possesses. 28 U.S.C. § 1915(a)(1). Implicit in § 1915 is a requirement
that the person include a statement of liabilities to allow an assessment of whether the
person’s net and liquid assets allow for payment of the filing fee. See Phillips v. Okla.
Corp. Comm’n, 484 F. App’x 270, 274 (10th Cir. 2012) (unpublished). Here, Mr.
Grimes submitted affidavits in both cases detailing his assets and liabilities. See TCF
Bank, No. 19-1078, at 1 Rawle 26–30; Colo. Springs City Comm’rs, No. 19-1082, at 2 Rawle 2–
6. And, in both cases, the district court calculated his stated net and liquid assets as
3
exceeding the $400 filing fee. We thus cannot hold the district court abused its
discretion. See Lay v. Okla. Dep’t of Corr., 746 F. App’x 777, 779 (10th Cir. 2018)
(unpublished) (district court did not abuse its discretion by denying an IFP motion when
it found the movant’s savings balance exceeded the district court filing fee).
B. Mr. Grimes’s IFP Motions on Appeal
Pursuant to Fed R. App. P. 24, a party desiring to proceed IFP on appeal “must file
a motion in the district court.” Fed R. App. P. 24(a)(1). Only if that motion is denied is
there occasion to file an IFP motion on appeal, which must be made within 30 days after
notice of the district court’s denial. See Fed. R. App. P. 24(a)(5). “Our consideration of
an appropriate and timely motion is not a review of the district court’s denial, but an
original consideration.” Boling–Bey v. U.S. Parole Comm’n, 559 F.3d 1149, 1154 (10th
Cir. 2009). Although Mr. Grimes failed to file the requisite motions in district court, in
the interest of expeditious processing of appeals, we will consider his motions.
To proceed IFP on appeal “an appellant must show a financial inability to pay the
required filing fees and the existence of a reasoned, nonfrivolous argument on the law
and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991). Mr. Grimes has not shown the existence of a reasoned,
nonfrivolous argument on the law and facts in support of his claim that the district court
cannot consider non-taxable amounts in deciding IFP matters.
Mr. Grimes’s motions to proceed IFP on appeal are DENIED and the district
courts’ denials of his motions to proceed IFP in district court are AFFIRMED. Mr.
4
Grimes is reminded of his obligation to pay the appellate filing fee.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
5