Ambrose v. Welch
| Citation | 729 F.2d 1084 |
| Decision Date | 21 March 1984 |
| Docket Number | No. 82-5575,82-5575 |
| Parties | Clay AMBROSE, Plaintiff-Appellant, v. Neil WELCH, George Wilson, Stephen Smith, Dewey Sowders, J.B. Owens, F. Richardsville, Sidney McDaniels and Robert Hodge, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David Murrell (argued), Louisville, Ky., for plaintiff-appellant.
Steven Beshear, Atty. Gen. of Kentucky, Barbara W. Jones (argued), Linda G. Cooper, David A. Sexton, Frankfort, Ky., for defendants-appellees.
Before LIVELY, Chief Judge, JONES, Circuit Judge, and PECK, Senior Circuit Judge.
This case is before the Court upon Clay Ambrose's appeal from an order of the United States Magistrate denying him leave to proceed in forma pauperis unless he paid a partial filing fee. Upon consideration of the briefs and oral argument we dismiss this appeal for lack of jurisdiction.
Clay Ambrose, the plaintiff-appellant, is a prisoner at the Kentucky State Penitentiary. His complaint alleged that his life was placed in danger because of the negligence of three guards, subsequently causing him to sustain physical and emotional injuries, and that he was denied necessary medical treatment for his injuries.
Ambrose first attempted to file his civil rights action on or about December 23, 1981, at which time he also filed a motion for leave to proceed in forma pauperis. After reviewing a certified copy of the account sheets for Ambrose's institutional account, the Magistrate determined that he had sufficient financial resources to pay part of the filing fee. Accordingly, he entered an order requiring Ambrose to pay $44.79 to partially cover the cost of filing the action. Upon payment of this amount, Ambrose would be permitted to proceed as a pauper. The order also provided that Ambrose could inform the court of any special circumstances which would warrant his total or partial exemption from the requirement to pay this amount.
Instead of appealing from this order, or attempting to comply therewith, Ambrose attempted to refile his complaint with the same motion for leave to proceed in forma pauperis. The Magistrate again denied leave unless and until Ambrose complied with the previous order requiring him to pay part of the filing fee.
Ambrose attempted to comply with the magistrate's order by submitting an affidavit setting forth special circumstances to relieve him of having to pay the partial filing fee. The affidavit alleged for the first time that Ambrose contributed to the support of a woman and her son. The Magistrate found this assertion "unworthy of belief" and denied the motion because the affidavit was directly inconsistent with his previous sworn declarations that he contributed no funds to the support of anyone.
Ambrose attempted to refile his action for a third time, and again sought leave to proceed in forma pauperis. This time his declaration in support of his motion admitted that he contributed nothing to anyone else's support, but maintained that he had only $1.17 in his institutional account. The Magistrate again denied the motion and directed Ambrose to pay the partial filing fee. It should be noted that even though Ambrose alleged that he had only $1.17 in his account, he had not complied with the Magistrate's original order which...
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