Case: 19-50784 Document: 00515883895 Page: 1 Date Filed: 06/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 2, 2021
No. 19-50784
Lyle W. Cayce
Summary Calendar Clerk
Alejandro Hernandez,
Plaintiff—Appellant,
versus
Constable R. A. Sommers, Precinct #7; Alberto Enrique
Hernandez; Reynaldo Aaron Morales; Victor Vazquez,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CV-79
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Alejandro Hernandez moves for leave to proceed in forma pauperis
(IFP) on appeal to challenge the dismissal of his civil complaint for failure to
comply with a court order requiring payment of applicable fees. For the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-50784 Document: 00515883895 Page: 2 Date Filed: 06/02/2021
No. 19-50784
following reasons, we grant Hernandez’s motion for leave to proceed IFP on
appeal, dispense with further briefing, vacate the district court’s judgment,
and remand the case to the district court for further proceedings.
Hernandez is financially eligible to proceed IFP on appeal. See Adkins
v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). He has also raised
a nonfrivolous issue for appeal with respect to whether the district court
considered him to be economically ineligible for arbitrary or erroneous
reasons and abused its discretion by denying his motion to reconsider the
order denying him leave to proceed IFP in the district court. See Flowers
v. Turbine Support Div., 507 F.2d 1242, 1244 (5th Cir. 1975), superseded by
statute on other grounds as recognized in Thompson v. Drewry, 138 F.3d 984, 985-
86 (5th Cir. 1998). The district court denied Hernandez’s motion to proceed
IFP based on his monthly income. However, in his motion for
reconsideration, Hernandez reported a substantial decrease in his income
and asserted that he had underreported his monthly expenses in his initial
IFP motion. In denying the motion to reconsider, the district court stated
Hernandez’s updated income and expenses did “not change the court’s
previous analysis” and that he had “sufficient funds to pay the filing fee.”
However, Hernandez’s financial affidavit showed limited assets as well as
necessary monthly expenses that exceeded his monthly income. Thus, we
conclude the district court erred. See Flowers, 507 F.2d at 1244.
On the merits of the appeal, Federal Rule of Civil Procedure 41(b)
authorizes the dismissal of an action for failure to prosecute or comply with
a court order. Fed. R. Civ. P. 41(b). For the reasons stated above, the
district court abused its discretion in ordering payment of the applicable fees.
Accordingly, the district court also abused its discretion in dismissing
Hernandez’s complaint for failure to comply with its order to pay the fees.
See Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014).
MOTION GRANTED; VACATED AND REMANDED.
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