Holmes v. Hardy, No. 88-2264

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore REAVLEY, KING and JOLLY; PER CURIAM
Citation852 F.2d 151
PartiesBilly HOLMES, a/k/a Bill Richards and Daniel Johnson, Plaintiffs-Appellants, v. Ray HARDY, et al., Defendants-Appellees. Summary Calendar.
Docket NumberNo. 88-2264
Decision Date16 August 1988

Page 151

852 F.2d 151
Billy HOLMES, a/k/a Bill Richards and Daniel Johnson,
Plaintiffs-Appellants,
v.
Ray HARDY, et al., Defendants-Appellees.
No. 88-2264
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Aug. 16, 1988.

Page 152

Billy Holmes, a/k/a Billy Richards, Huntsville, Tex., pro se.

Daniel Johnson, Huntsville, Tex., pro se.

Ann Hardy, Asst. Co. Atty., Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, KING and JOLLY, Circuit Judges.

PER CURIAM:

The plaintiffs Billy Holmes and Daniel Johnson, Texas prisoners, complain that defendant Ray Hardy, clerk of the state court of Harris County, Texas, violated their fourteenth amendment due process and equal protection rights and their first amendment right of access to the courts when he formally challenged their in forma pauperis status in a previous lawsuit. The district court granted the defendants' motion for summary judgment and dismissed this case with prejudice for failure to state a cause of action under Fed.R.Civ.P. 12(b)(6) and for frivolousness under 28 U.S.C. Sec. 1915(d). We affirm.

I

In October 1983, while in a Texas prison, Billy Holmes filed malpractice charges in Harris County Court against his former defense attorney. Ray Hardy, clerk of the Harris County court, contested Holmes' in forma pauperis ("IFP") status under Rule 145, Tex.R.Civ.P.Ann. (Vernon 1982). Rule 145 provides that a state court clerk may challenge the IFP status of litigants. 1 In January 1984, Daniel Johnson, another Texas prison inmate, filed suit against the Harris County Rehabilitation Center for alleged negligence in medical treatment. Hardy also contested Johnson's IFP status under Rule 145. In both cases, Hardy's challenges were overruled, and Hardy served process on the state court defendants in compliance with his official duties. In November 1983, however, Holmes filed this suit against Harris County and Ray Hardy for alleged first and fourteenth amendment violations. Johnson intervened in February 1984. The district court granted

Page 153

Harris County and Hardy summary judgment in December 1987. The plaintiffs appeal.
II

On appeal the plaintiffs note that a Rule 145 challenge is not mandatory and argue that Hardy intentionally and in bad faith sought to deny the plaintiffs access to the courts. In support of this claim, they contend that the affidavits of indigency that they filed were...

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195 practice notes
  • Carter v. U.S. Dep't of Def., No. CIV 16-0786 JB/SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 28 Febrero 2017
    ...in light of the applicant's present financial status." Scherer v. Kansas, 263 F. App'x 667, 669 (10th Cir. 2008)(citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988)).Page 8 The Court may grant a motion to proceed in forma pauperis even if the complaint fails to state a claim and the C......
  • Johnson v. Rodriguez, Nos. 95-50879
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 23 Abril 1997
    ...however, Johnson v. Kegans, 870 F.2d 992 (5th Cir.1989) (section 1983 action filed by Johnson dismissed as frivolous); Holmes v. Hardy, 852 F.2d 151 (5th Cir.1988) (section 1983 action brought by Johnson and other prisoners dismissed as frivolous); Whittington v. Lynaugh, 842 F.2d 818 (5th ......
  • Sherrell v. Univ. of N.M., No. CIV 18-0408 JB\JHR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 13 Noviembre 2018
    ...the applicant's present financial status." Scherer v. Kansas, 263 F. App'x 667, 669 (10th Cir. 2008) (unpublished)(citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988) ).1 "The statute [allowing a litigant to proceed in forma pauperis] was intended for the benefit of those too poor to ......
  • Garcia v. Cole, No. CIV 18-1032 JB\KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 20 Septiembre 2019
    ...light of the applicant's present financial status." Scherer v. Kansas, 263 Fed. App'x. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988) ). "The statute [allowing a litigant to proceed in forma pauperis] was intended for the benefit of those too poor to pa......
  • Request a trial to view additional results
195 cases
  • Carter v. U.S. Dep't of Def., No. CIV 16-0786 JB/SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 28 Febrero 2017
    ...in light of the applicant's present financial status." Scherer v. Kansas, 263 F. App'x 667, 669 (10th Cir. 2008)(citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988)).Page 8 The Court may grant a motion to proceed in forma pauperis even if the complaint fails to state a claim and the C......
  • Johnson v. Rodriguez, Nos. 95-50879
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 23 Abril 1997
    ...however, Johnson v. Kegans, 870 F.2d 992 (5th Cir.1989) (section 1983 action filed by Johnson dismissed as frivolous); Holmes v. Hardy, 852 F.2d 151 (5th Cir.1988) (section 1983 action brought by Johnson and other prisoners dismissed as frivolous); Whittington v. Lynaugh, 842 F.2d 818 (5th ......
  • Sherrell v. Univ. of N.M., No. CIV 18-0408 JB\JHR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 13 Noviembre 2018
    ...the applicant's present financial status." Scherer v. Kansas, 263 F. App'x 667, 669 (10th Cir. 2008) (unpublished)(citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988) ).1 "The statute [allowing a litigant to proceed in forma pauperis] was intended for the benefit of those too poor to ......
  • Garcia v. Cole, No. CIV 18-1032 JB\KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 20 Septiembre 2019
    ...light of the applicant's present financial status." Scherer v. Kansas, 263 Fed. App'x. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988) ). "The statute [allowing a litigant to proceed in forma pauperis] was intended for the benefit of those too poor to pa......
  • Request a trial to view additional results

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