734 Fed.Appx. 163 (3rd Cir. 2018), 17-2812, Cordero v. Kelley

Docket Nº:17-2812
Citation:734 Fed.Appx. 163
Opinion Judge:PER CURIAM
Party Name:Misael CORDERO, Appellant v. Gregory KELLEY, sue in their individual and official capacities; Stephen D’Llio, sue in their individual and official capacities
Attorney:Misael Cordero, Pro Se
Judge Panel:Before: SHWARTZ, KRAUSE, and FISHER, Circuit Judges
Case Date:May 10, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 163

734 Fed.Appx. 163 (3rd Cir. 2018)

Misael CORDERO, Appellant


Gregory KELLEY, sue in their individual and official capacities; Stephen D’Llio, sue in their individual and official capacities

No. 17-2812

United States Court of Appeals, Third Circuit

May 10, 2018


Submitted Pursuant to Third Circuit LAR 34.1(a) May 9, 2018

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-17-cv-01596), District Judge: Honorable Peter G. Sheridan

Misael Cordero, Pro Se

Before: SHWARTZ, KRAUSE, and FISHER, Circuit Judges



Page 164

Misael Cordero appeals from the order of the District Court denying his application for leave to proceed in forma pauperis ("IFP"). We will vacate and remand for further proceedings.


Cordero is a New Jersey state prisoner who is serving a life sentence. He filed an IFP application along with a proposed complaint alleging that prison officials confiscated his religious materials and obstructed the grievance process in violation of his First Amendment rights. Cordero sought leave to proceed IFP in order to avoid prepayment of the $400 filing and administrative fees. In support of his application, he submitted his prison account statement for the preceding six months. The statement showed that, although his balance had at times exceeded $700, he had only $5.86 at the time of filing.

The District Court denied Cordero’s IFP application. The District Court reasoned that Cordero had an income of $1,917.50 during the preceding six months, consisting of $45 per month in prison wages as well as gifts from his family, for an average monthly income of just over $300. The District Court further reasoned that this income showed that Cordero could afford to prepay the fees or could have done so if he had saved his money. Thus, the District Court denied Cordero’s application but gave him more time to pay the fees. Cordero filed a motion for reconsideration. The District Court denied that motion too but again gave Cordero more time to pay the fees. Cordero appeals.1


Although the District Court did not expressly state as much, its denial of Cordero’s IFP application has both a backward-looking and a forward-looking component. The backward-looking component is the District Court’s conclusion that Cordero could have prepaid the fees if he had saved his money instead of spending it on other things. The forward-looking component is the District Court’s apparent conclusion that Cordero would continue to receive the same income and would be able to save and prepay the fees in the future if given more time. Cordero argues that the District Court abused its discretion for both reasons. Although we reject some of Cordero’s specific arguments, we ultimately agree.

First, Cordero argues that courts can never consider assets that were previously available to a prisoner because the IFP statute speaks solely in terms of the prisoner’s present ability to pay the fees. See 28 U.S.C. § 1915(a)(1).2 We do not appear

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to have addressed that issue in a precedential opinion. Other Courts of Appeals, however, have held that courts may consider pre-filing expenditures so long as the courts inquire into the nature and timing of those expenditures and give the plaintiff an opportunity to show that they were not a "a deliberate attempt to avoid the filing fee." Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993) (collecting cases).3 The District Court did not address that issue.

The District Court also failed to otherwise properly account for Cordero’s expenses and for amounts that he should reasonably be able to spend in prison. The District Court did not acknowledge, for example, that one third of Cordero’s wages and ten percent of his gifts are automatically deducted for payment toward fines and penalties. Nor did the District Court make any determination regarding the nature or amount of Cordero’s discretionary spending. Instead, the District Court appears to have assumed that all of Corderos discretionary spending should count against him for IFP purposes because his prison is...

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