de la Cruz v. Avance ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 26, 2003
Charles R. Fulbruge III
Clerk
No. 03-40571
Summary Calendar
DIONEL DE LA CRUZ,
Plaintiff-Appellant,
versus
AVANCE,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(M-02-MC-54)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Dionel de la Cruz appeals the district court’s 11 April 2003
order denying him leave to proceed in forma pauperis (IFP) and
instructing him on the procedures for complying with the court’s
prior sanction order. “[A]n order denying an application to
proceed in forma pauperis is appealable as a final decision”.
Caston v. Sears, Roebuck & Co., Hattiesburg, Miss., 556 F.2d 1305,
1307 (5th Cir. 1977).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
De la Cruz’s sole contention on appeal is that the district
court erred when it denied his IFP application. De la Cruz does
not address any other aspect of the court’s order. Accordingly,
any assertions pertaining to the court’s instruction regarding the
prior sanction are waived. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
The record is unclear whether the order was a denial of de la
Cruz’s motion to proceed IFP in district court or a denial of his
motion to proceed IFP on appeal. To the extent that the order can
be construed as a denial of leave to proceed IFP in district court,
the appeal is without merit. In the light of the fact that de la
Cruz failed to appear at the hearing addressing his IFP request, he
cannot show that the district court abused its discretion by
denying IFP. See Flowers v. Turbine Support Division, 507 F.2d
1242, 1244 (5th Cir. 1975). (To the extent that the order can be
construed as a denial of the motion to proceed IFP on appeal, the
appeal is moot. See Rocky v. King, 900 F.2d 864, 866-67 (5th Cir.
1990). The district court ultimately granted de la Cruz leave to
proceed IFP on appeal.)
AFFIRMED
2