Courtney v. Havard ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10173
Summary Calendar
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GARY FRANCIS COURTNEY,
Plaintiff-Appellant,
versus
J. HAVARD, Parole Officer, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:95-MC-4-C
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(April 21, 1995)
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gary Francis Courtney seeks to appeal in forma pauperis
(IFP) in his appeal from the district court's denial of his
application to obtain pauper status to proceed with his civil
rights action. Liberally construed, Courtney argues that the
district court based its decision on erroneous information
concerning his economic status.
The denial of IFP status is reviewed for an abuse of
discretion. See Flowers v. Turbine Support Division, 507 F.2d
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
No. 95-10173
-2-
1242, 1243-44 (5th Cir. 1975). Whether a party may proceed IFP
in the district court is based solely upon economic criteria.
Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976). Poverty
sufficient to qualify does not require absolute destitution.
Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339
(1948).
Courtney presented credible evidence that the inmate trust
fund officer erroneously reported that the total deposits made to
his account in the 90-day period preceding his application was
$472.74. The evidence showed that Courtney had total deposits of
$55 in September, October, and November of 1994 and a balance in
his account of $28.46. The determination that Courtney did not
meet the economic criteria because he had deposits of $472.74 was
an abuse of discretion.
Accordingly, Courtney has presented a nonfrivolous issue
for appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). IT IS ORDERED that his motion to proceed in forma
pauperis on appeal is GRANTED. IT IS FURTHER ORDERED that the
judgment of the district court is VACATED and the case is
REMANDED for further proceedings. See Clark v. Williams, 693
F.2d 381, 381-82 (5th Cir. 1982). Among the alternatives
available to the district court is the imposition of a partial
payment of the filing fee. See Green v. Estelle, 649 F.2d 298,
301-02 (5th Cir. 1981).