[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11495 DECEMBER 7, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-01848-CV-ORL-22-KRS
HERMAN WILLIAMS,
Petitioner-Appellant,
versus
RANDALL BRYANT,
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 7, 2005)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Herman Williams, a Florida prisoner proceeding pro se, appeals the
dismissal without prejudice of his habeas corpus petition, brought pursuant to 28
U.S.C. § 2254, for failure to pay a partial filing fee. On appeal, Williams argues
that because the district court was aware that he did not have the financial ability to
pay the partial filing fee, it erred by dismissing his § 2254 without prejudice. He
further argues that the district court violated his due process, equal protection, and
First Amendment rights by denying him access to the court “because he is poor.” 1
Williams asks us to grant him leave to proceed in forma pauperis (“IFP”) and
remand this case in order for the district court to rule on the merits of his § 2254
petition.
We review a district court’s order dismissing an action for failure to comply
with local rules for an abuse of discretion. Kilgo v. Ricks, 983 F.2d 189, 192 (11th
Cir. 1993). Rule 4.07 of the Local Rules of the Middle District of Florida provides
that a district court may enter an order “that [a] party seeking leave to proceed
[IFP] shall pay a stated portion of the Clerk’s and/or Marshal’s fees within a
prescribed time, failing which the action may be dismissed without prejudice.”
1
The scope of this appeal is limited to the issue upon which the certificate of appealability
(“COA”) was granted. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). We
granted the COA on the following issue: “[w]hether the district court erred in dismissing appellant’s
habeas petition without prejudice for failure to pay the partial filing fee.” Accordingly, we will not
discuss Williams’s due process and equal protection claims.
2
M.D. Fla. R. 4.07(a). Local Rule 4.07 specifically references Local Rule 4.14,
which provides that, “[i]n proceedings instituted [IFP] under [§] 2254 . . ., the
Court may order, as a condition to allowing the case to proceed, that the Clerk’s
and Marshal’s fees be paid by the petitioner if it appears that he has $25.00 or more
to his credit . . . in any account maintained for him by custodial authorities.” M.D.
Fla. R. 4.14(b).
The district court ordered Williams to pay a partial filing fee without first
determining, under Local Rule 4.14(b), whether he had $25 in his prison account, a
prerequisite to the court’s authority to order him to pay a filing fee. A review of
Williams’s prison account statement demonstrates that he did not have $25 in his
prison account at the time when he filed his § 2254 petition. Because the district
court lacked the authority under its local rules to order Williams to pay a partial
filing fee, the district court abused its discretion by dismissing Williams’s § 2254
petition for failure to pay the partial filing fee.
VACATE AND REMANDED.
3