Allen Raymond Phipps v. Phylliss King , 866 F.2d 824 ( 1988 )

866 F.2d 824

Allen Raymond PHIPPS, Plaintiff-Appellant,
v.
Phylliss KING, Defendant-Appellee.

No. 87-5561.

United States Court of Appeals,
Sixth Circuit.

Dec. 20, 1988.

Daniel G. Van Norman, pro bono, Pontiac, Mich., for plaintiff-appellant.

W. Hickman Ewing, Jr., U.S. Atty., Reba Robinson, Robert Williams, Jr., Memphis, Tenn., for defendant-appellee.

Before MILBURN and NORRIS, Circuit Judges, and SUHRHEINRICH, District Judge*.

MILBURN, Circuit Judge.

1

Plaintiff-appellant Allen Phipps, an inmate at the Federal Correctional Institute in Memphis, Tennessee ("FCI"), appeals from the district court's order denying his application to proceed in forma pauperis in this Bivens-type action. The sole issue before this court is whether the district court abused its discretion in denying Phipps' application.

2

Phipps filed this civil rights action on February 11, 1987, seeking monetary and declaratory relief. He alleged that defendant-appellee Phylliss King, his case manager at FCI, violated his constitutional rights when he was denied a transfer from the Memphis facility to a federal corrections facility in Chicago, Illinois. Phipps filed a motion to proceed in forma pauperis accompanied by an affidavit declaring his earnings to be $41.00 per month with additional assets consisting of a $107.00 Christmas present from his family on deposit with the correctional facility in his inmate account. At the time of his filing, the verification of his account revealed a balance of $113.15.

3

On February 24, 1987, a United States magistrate issued an "order" which acknowledged that Phipps would be unable to pay the $120.00 filing fee. However, the "order" noted his account balance and ordered him to pay the first $60.00 of the $120.00 fee. Phipps filed an objection to the magistrate's "order" accompanied by a renewed application indicating a decrease in his work-related income. On May 12, 1987, the district court approved the order previously adopted by the magistrate. Phipps subsequently filed a timely notice of appeal. See Roberts v. United States Dist. Court, 339 U.S. 844, 845, 70 S.Ct. 954, 955, 94 L.Ed. 1326 (1950) ("the denial by a district judge of a motion to proceed in forma pauperis is an appealable order.").

4

In Foster v. United States, 344 F.2d 698, 700 (6th Cir.1965), we held that a district court is required to state the reasons underlying a denial of a party's application to proceed in forma pauperis. In this case, the order denying Phipps' application simply notes the amount in Phipps' prison account and then requires a partial filing fee in excess of 50 per cent of that amount. The court's rationale is not provided. For that reason, it is impossible for this court to determine whether or not the district court abused its discretion in denying the application. Moreover, the defendant contends that Phipps has been released from prison. If such is the case, his financial situation may have changed, and he may no longer be entitled to proceed in forma pauperis.

5

Accordingly, the district court's order denying Phipps' application to proceed in forma pauperis is VACATED, without prejudice, and this case is REMANDED to the district court for reconsideration and/or proceedings not inconsistent with this court's holding. We express no opinion as to the eventual outcome of this issue nor on the merits of Phipps' allegations.

*

Honorable Richard F. Suhrheinrich, Judge, United States District Court for the Eastern District of Michigan, sitting by designation