979 F.2d 853 (7th Cir. 1992), 90-2746, Martin v. Mueller

Docket Nº:90-2746.
Citation:979 F.2d 853
Party Name:John-Tyronne MARTIN, Plaintiff-Appellant, v. Howard MUELLER, sued as H. Mueller; John Brady; and Ali Khaja, Defendants-Appellees.
Case Date:November 02, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 853

979 F.2d 853 (7th Cir. 1992)

John-Tyronne MARTIN, Plaintiff-Appellant,

v.

Howard MUELLER, sued as H. Mueller; John Brady; and Ali Khaja, Defendants-Appellees.

No. 90-2746.

United States Court of Appeals, Seventh Circuit

November 2, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Decided Nov. 17, 1992.

Appeal from the United States District Court for the Central District of Illinois, Danville Division; No. 89 C 2326, Harold A. Baker, Judge.

C.D.Ill.

AFFIRMED.

Before CUDAHY, POSNER and RIPPLE, Circuit Judges.

ORDER

Appellant John-Tyronne Martin appeals the trial court's order dismissing his complaint under 42 U.S.C. § 1983 and denying his motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Because the district court's order dismissed Martin's complaint without prejudice, the basis for this court's jurisdiction rests solely on the district court's denial of the appellant's in forma pauperis petition after the appellant failed to comply with the court's order requiring him to pay a partial filing fee. Roberts v. United States District Court, 339 U.S. 844, 845 (1950); House v. Belford, 956 F.2d 711, 716 (7th Cir.1992).

Martin, currently confined in the Illinois State Prison in Pontiac, Illinois, filed a complaint under 42 U.S.C. § 1983 alleging that the defendants, all medical staff members at Pontiac, violated his rights because they refused to render medical treatment to him because he is an African-American. 1 Contemporaneous with the filing of his complaint, Martin filed a petition for leave to proceed in forma pauperis. In compliance with Standing Order Number 5 of the Central District of Illinois, 2 Martin also attached a copy of his inmate trust fund ledger. Martin claimed indigency in his petition for leave to proceed in forma pauperis. The trust fund ledger, however, revealed that Martin received payments into his personal trust fund account of $110.00 for the six months preceding the submission of his pleadings, although he only had a current balance of fifty-eight cents.

On November 8, 1989, the district judge entered an Order requiring Martin to prepay a partial filing fee of $9.16 before allowing the plaintiff to file his complaint and proceed in forma pauperis. The district judge stated that the a partial prepayment was appropriate because Martin's trust fund ledger revealed that he had a six-month income of $110.00 prior to the filing of his complaint. While the Order required partial payment within forty-five days, it also stated that partial payment would be waived if Martin showed cause within forty-five days why partial payment should not be required.

In response to the district court's Order, Martin filed a pleading on November 14, 1989, that did not challenge the district court's evaluation of his ability to pay a partial fee, but that merely stated that he had fulfilled all requirements to proceed in forma pauperis. The district court...

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