F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 23, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN A. GALBRAITH,
Plaintiff-Appellant, Nos. 05-1060 and 05-1084
v. (D. Colorado)
THOMAS FAWELL; and (D.C. Nos. 04-Z-1412, 04-ES-1577)
CORRECTIONAL HEALTH,
actually reads The Medical Staff at
C.J.C. i.e., The Correctional
Healthcare Staff;
Defendant-Appellee.
ORDER
Before EBEL, McKAY, and HENRY, Circuit Judges.
Steven Galbraith, a state prisoner proceeding pro se, appeals the district
court’s dismissal of his civil rights complaints brought pursuant to 42 U.S.C. §
1983. Mr. Galbraith also seeks to proceed in forma pauperis (IFP) and requests
the appointment of counsel.
Mr. Galbraith filed separate causes of actions against defendants
Correctional Health and Dr. Thomas Fawell, which we have consolidated in this
appeal. He alleged that each defendant was deliberately indifferent to his medical
needs in violation of the Eighth Amendment to the United States Constitution. In
each action, Mr. Galbraith sought to proceed IFP, and the magistrate judge
ordered him to provide a certified copy of his inmate trust fund account statement,
pursuant to 28 U.S.C. § 1915(a)(2). In the alternative, Mr. Galbraith could have
submitted the $150.00 filing fee. Mr. Galbraith failed to cure the deficiencies,
and the district court dismissed the complaints without prejudice. Mr. Galbraith
now appeals.
We construe Mr. Galbraith’s pro se filings in this court liberally, as we are
required to do under Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
We review for an abuse of discretion the district court’s “without
prejudice” dismissal for failure to provide prison account statements, as required
by 28 U.S.C. § 1915(a)(2). See Denton v. Hernandez, 504 U.S. 25, 33 (1992)
(holding that the dismissal of a frivolous action reviewed for abuse of discretion).
Abuse of discretion is defined as “an arbitrary, capricious, whimsical, or
manifestly unreasonable judgment.” Coletti v. Cudd Pressure Control, 165 F.3d
767, 777 (10th Cir. 1999) (internal quotation marks omitted).
We conclude that the district court did not abuse its discretion. Mr.
Galbraith clearly has not met the requirements of 28 U.S.C. § 1915(a)(2), under
which he must submit “a certified copy of the trust fund account statement” to
enable the court to determine his qualification for IFP status. We therefore
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AFFIRM the order of the district court for substantially the reasons given by the
magistrate judge and the district court, DENY the motion for appointment of
counsel, and DENY Mr. Galbraith’s motion to proceed IFP. Mr. Galbraith is
responsible for the immediate payment of the unpaid balance of the appellate
filing fee.
Entered for the Court,
Robert H. Henry
Circuit Judge
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