IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40217
Summary Calendar
_____________________
NORRIS HICKS,
Plaintiff-Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department Correctional Justice——
Institutional Division, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the
Southern District of Texas
(C 94 CV 424)
_________________________________________________________________
( August 24, 1995)
Before KING, JOHNSON, and GARWOOD, Circuit Judges.
JOHNSON, Circuit Judge:1
Norris Hicks ("Hicks"), an inmate in the Texas state prison
system appeals the district court's dismissal without prejudice of
his civil rights action on the ground that Hicks had failed to file
a complete application to proceed in forma pauperis ("IFP").
Because we believe that the district court should have examined
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to this Rule, the Court has determined that this opinion
should not be published.
whether prison officials prevented Hicks from completing a proper
IFP application, we vacate the dismissal and remand to the district
court for further inquiry on this issue.
I. Facts and Procedural History
Hicks filed a section 1983 complaint against Texas state
prison officials, seeking to enjoin the prison officers from
depriving him of certain constitutional rights as well as to force
a criminal prosecution of those officers. Hicks alleged that the
prison officers had violated his civil rights by: preparing a
false disciplinary report against him, disciplining him improperly,
locking him down without due process, confiscating his legal
documents, denying him writing supplies, harassing him, retaliating
against him for exercising his First Amendment rights, improperly
handcuffing him to move him about the prison, and denying him hot
meals. Along with his section 1983 complaint, Hicks filed an
application to proceed IFP on the grounds that he was a prisoner
and was too poor to pay legal and filing fees.2
The district court found Hicks' IFP application to be
incomplete and ordered Hicks to submit a signed certification of
the balance in his inmate account along with the six-month average
2
Hicks included an IFP affidavit along with his original
section 1983 complaint in which he declared under oath and penalty
of perjury that he was an indigent prisoner "too poor to give
securities or otherwise pay for this action." (Record at 30.)
Hicks cited 28 U.S.C. § 1746 as authority for the proposition that
such an affidavit would substitute for a sworn to and notarized
affidavit, as required by the IFP statute, 28 U.S.C. § 1915. While
such an affidavit would provide the district court with adequate
grounds on which to grant IFP status, the district court may also
require further proof of poverty as part of its inherent authority
to evaluate the applicant's status under 28 U.S.C. § 1915(d).
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balance in his account. In the order finding the IFP application
inadequate, the district court expressly held that failure to
provide the court with a certification of the inmate account
balances would result in a dismissal of Hicks' action.
Hicks then filed a "Petition for In Forma Status & Petition
for Memrandum of Law" (sic), in which he stated that he knew of
instances in which prison officials delayed or simply refused such
certifications. Hicks stated that he was in the process of seeking
such certification, but he accused both the court and the prison
system of acting in concert to impede his access to the courts.
Under such circumstances, Hicks claimed that his 28 U.S.C. § 1746
statement of poverty was sufficient. Along with this document,
Hicks filed another application for IFP status along with an
uncertified print-out showing only $2.40 in his inmate account.
Hicks also moved the court to hold a hearing on the question of
whether he had diligently attempted to comply with the court's
order requiring certification of his poverty status.
The district court found the uncertified application,
uncertified print-out, and Hicks' statements to be inadequate.
Thus, the district court dismissed Hicks' section 1983 action
without prejudice on the ground that Hicks had failed to comply
with the order requiring certification. Within ten days after this
judgment was entered, Hicks filed a motion for reconsideration by
the district court or, in the alternative to appeal. Hicks then
filed a notice of appeal and a motion to proceed IFP on appeal.
The district court denied the motion for reconsideration. In
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its denial, the district court noted that two months had passed
since Hicks had been ordered to obtain certification of the amount
of funds in his inmate account and still no certification had been
rendered. The court also noted in the denial that during that two
months other prisoners in Hicks' unit had filed the requisite
certifications.
Thereafter, Hicks noticed an appeal from the denial of the
motion for reconsideration.3 Hicks requested IFP status on appeal.
The district court noted Hicks' failure to properly apply for IFP
status at the trial court level but nevertheless granted him IFP
status on the appeal.
II. Discussion
The procedure for a party to bring an IFP lawsuit is set out
in 28 U.S.C. § 1915. Prows v. Kastner, 842 F.2d 138, 140 (5th cir.
1988). The relevant portions of Section 1915 provide as follows:
(a) Any courtt of the United States may authorize the
commencement, prosecution or defense of any suit, action
or proceeding, civil or criminal, or appeal therein,
without prepayment of fees and costs or security
therefor, by a person who makes affidavit that he is
unable to pay such costs or give security therefor. Such
affidavit shall state the nature of the action, defense
or appeal and affiant's belief that he is entitled to
redress.
* * *
3
When the district court entered the denial of the motion for
reconsideration, Hicks had pending in this Court the motion for
reconsideration, or alternatively, to appeal. Without knowledge of
the denial of the motion for reconsideration, an Augean panel of
this Court held that the motion was not a proper notice of appeal
since the motion for reconsideration was still before the district
court. The Court also noted that Hicks would not be precluded from
filing a notice of appeal once the district court entered a
separate judgment on the motion for reconsideration.
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(d) The court . . . may dismiss the case if the allegation of
poverty is untrue, or if satisfied that the action is
frivolous or malicious.
28 U.S.C. § 1915. Section 1915 is intended to provide access to
federal courts for plaintiffs who lack the financial resources to
pay statutory filing costs. Prows, 842 F.2d at 140. The relevant
determination to be made by the district court under 28 U.S.C. §
1915(d) is whether the statements in a prisoner's affidavit satisfy
the requirements of poverty for IFP status. Watson v. Ault, 525
F.2d 886, 891 (5th Cir. 1976). The district court's determination
that a prisoner does not meet the IFP poverty requirement is
reviewed under an abuse of discretion standard. See Prows, 842
F.2d at 139-40.
Despite the wide discretion given the district court in
evaluating a prisoner's IFP eligibility, we believe the district
court rendered itself incapable of fully exercising such discretion
in this instance by failing to afford Hicks an opportunity to prove
that the prison officials prevented him from complying with the
district court's orders that he provide certification of his inmate
expense account. Hicks repeatedly alleged that the prison
officials refused to provide him with certification of his expense
account. If Hicks' allegations are true, affirmance of the
district court's dismissal would effectively close the courthouse
door to him due to the prison officials' actions. This cannot be
permitted.
Under these circumstances, we have no choice but to vacate the
dismissal and remand this case to the district court to hold a
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hearing on whether the prison officials prevented Hicks from
complying with the district court's order that he attain
certification of his inmate account balances.
III. Conclusion
Because the district court did not inquire into Hicks'
allegations that prison officials prevented him from properly
demonstrating his qualifications for IFP status, we vacate the
district court's dismissal and remand to the district court for
such an inquiry.
VACATED AND REMANDED.
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