Amen v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 1 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk

RANDOLPH JOHN AMEN,

Plaintiff-Appellant,
vs. No. 96-5146
(D.C. No. 95-C-4-H)
UNITED STATES OF AMERICA, (N.D. Okla.)

Defendant-Appellee.

ORDER AND JUDGMENT*

Before BRORBY, EBEL, and KELLY, Circuit Judges.**

Mr. Amen appeals from the district court’s dismissal of his complaint against the

United States based upon the magistrate’s report and recommendation, I R. doc. 67, the

magistrate’s order denying him leave to file a second amended complaint, I R. doc. 68

and the district court’s decision to dismiss 31 parties for misjoinder, leaving only the

government remaining. Aplee. App. 60-61 (doc. 49). He also seeks leave to proceed on

*
This order and judgment is not binding precedent, except under the doctrines of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.
**
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
appeal without prepayment of costs or fees.

Our review of the district court docket sheet indicates that Plaintiff was not granted

leave to proceed in forma pauperis [IFP] in that court. I R. doc. 2, 33 (denying

reconsideration for leave to proceed IFP), & Clerk’s Minutes of 5/26/95 “USA questions

whether filing fee has been pd will be addressed by Ct.” Our inquiry of the district court

clerk indicates that Mr. Amen has not paid the district court filing fee. See 28 U.S.C.

§ 1914(a). Given these facts, the district court should have dismissed the complaint

without prejudice. Although a district court’s decision denying leave to file IFP status is

appealable, Ragan v. Cox, 305 F.2d 58, 59 (10th Cir. 1962), no appeal has been taken on

that ground.

Subsequently, the district court denied Plaintiff’s motion for leave to appeal in

forma pauperis. I R. doc. 75. That matter is now before us. Based on the foregoing,

Plaintiff’s motion to proceed on appeal without prepayment of costs or fees is DENIED,

see 28 U.S.C. § 1915(e)(2); LaFevers v. Saffle, 936 F.2d 1117, 1120 (10th Cir. 1991),

and the matter is REMANDED to the district court with instructions to VACATE its

merits orders and enter a judgment of dismissal without prejudice within 30 days. Upon

compliance therewith, the appeal shall be DISMISSED.

IT IS SO ORDERED.
Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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