Bell v. Whethel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOE T. BELL,
Plaintiff-Appellant,
v. No. 97-6126
(D.C. No. 96-CV-2093)
TOM WHETHEL, (Western District of Oklahoma)
Defendant-Appellee.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the doctrines of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. This 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.
Joe Thomas Bell appeals the dismissal without prejudice of his 42 U.S.C. § 1983civil action for failure to pay an installment of the filing fee established for him by the
court under 28 U.S.C. § 1915(b)(1). The court’s investigation prior to dismissing the
action showed Mr. Bell apparently spent his prison account on “canteen” rather than meet
the installments ordered by the court. The court concluded Mr. Bell was not serious about
his suit and dismissed as a consequence.
Mr. Bell has appealed, presenting documents to us indicating the failure to pay the
required fee may have been caused by his jailers and that money had been drawn from
Mr. Bell’s account but not paid to the court. For numerous, but really irrelevant reasons,
he asserts the dismissal by the district court was erroneous.
Our reading of the provisions of the Prisoner Litigation Reform Act leaves us in
grave doubt whether a district court may dismiss a prisoner’s case for failure to pay an
installment of the docket fee. While the court relied on cases from other circuits to
support its action, those cases antedated the PLRA and are not apposite.
The only statutory grounds for dismissal of the in forma pauperis action are set
forth in § 1915(e)(2). None of those provisions are related to the nonpayment of fees. In
the absence of statutory authority, dismissal for that reason is contrary to § 1915(b)(4)
which prohibits the denial of access to the court on the grounds of poverty. See Walp v.
Scott, 115 F.3d 308, 310 (5th Cir 1997).
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Dismissal of the complaint was at worst, however, premature. The grounds for
relief appear tenuous, and upon further determination by the district court, may even
prove baseless. Nonetheless, we must REVERSE and REMAND WITH
INSTRUCTIONS to reinstate the action.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
Judge Murphy dissents.
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