IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51097
USDC No. W-99-CV-292
STEVEN HARM,
Plaintiff-Appellant,
versus
TERRY R. HASSEL; JIMMY R. LAWSON; RODNEY GEBERT; BENNY BOYKIN;
TRAVIS BLACK; ROBERT LUMMUS; MONTE CULAME; RANDY B. DANIEL;
CLAUDE BILL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
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April 3, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Steven Harm, Texas inmate #701786, moves this court for leave
to proceed in forma pauperis (IFP) on appeal. Harm’s motion for
appointment of counsel is DENIED.
Harm challenges the district court’s refusal to grant IFP
status on appeal based upon its determination that the appeal was
not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Harm contends that the district court abused its
*
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opinion should not be published and is not precedent except under the limited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.
O R D E R
No. 99-51097
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discretion by dismissing his complaint for failure to pay the
initial partial filing fee. He contends that the district court
erred by failing to provide reasons for the certification. He
asserts that the prison authorities should have forwarded the
initial partial filing fee to the district court clerk.
When the district court certifies that an appeal is not taken
in good faith, it must “set forth in writing the reasons for its
certification.” Baugh, 117 F.3d at 202. The district court did
not do so in this case. Nevertheless, we may address the merits of
the only issue before the court. See id.
The district court’s dismissal without prejudice of Harm’s 42
U.S.C. § 1983 complaint for failure to pay the initial partial
filing fee was an abuse of discretion. See Hatchet v. Nettles, ___
F.3d ___, 2000 WL 45516 at *1-*3 (5th Cir. Feb. 4, 2000). The
district court did not make a proper inquiry to determine whether
Harm had executed the necessary consent or authorization forms and
whether he had complied with the order to pay the filing fee. The
district court’s order, assessing the initial partial filing fee,
did not order payment of the initial partial filing fee from Harm’s
prisoner’s trust account when funds were available.
Accordingly, Harm’s motion for leave to proceed IFP on appeal
is GRANTED, the district court’s judgment dismissing Harm’s § 1983
complaint is VACATED, and the case is REMANDED to the district
court for further proceedings consistent with this court’s opinion
in Hatchet v. Nettles, ___ F.3d ___, 2000 WL 45516 at *1-*3 (5th
Cir. Feb. 4, 2000).
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No. 99-51097
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MOTION FOR IFP GRANTED; VACATED AND REMANDED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.