Lister v. Department of Treasury, No. 04-5087.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtLucero
Citation408 F.3d 1309
Decision Date25 May 2005
Docket NumberNo. 04-5087.
PartiesJan LISTER, Plaintiff-Appellant, v. DEPARTMENT OF THE TREASURY, Jo Anne B. Barnhart, Commissioner of Social Security Administration, Defendant-Appellee.
408 F.3d 1309
Jan LISTER, Plaintiff-Appellant,
v.
DEPARTMENT OF THE TREASURY, Jo Anne B. Barnhart, Commissioner of Social Security Administration, Defendant-Appellee.
No. 04-5087.
United States Court of Appeals, Tenth Circuit.
May 25, 2005.

Page 1310

Submitted on the briefs: Jan Lister, pro se.

Before LUCERO, PORFILIO, and BALDOCK, Circuit Judges.

LUCERO, Circuit Judge.


Jan Lister appeals from the district court's denial of her motion for leave to proceed in forma pauperis (IFP) to file a complaint and have it served. Finding no error in the district court's ruling, we AFFIRM.1

I

Although the district court's ruling is not a final order, "denial by a District Judge of a motion to proceed in forma pauperis is an appealable order" under the Cohen doctrine. Roberts v. United States Dist. Court, 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326 (1950) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)); Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988) (noting that "an interlocutory appeal may be taken from an order denying

Page 1311

leave to proceed in forma pauperis under the [Cohen] doctrine"); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.1987) (accord). If a truly indigent claimant is not granted IFP status, she is barred from proceeding at all in district court. Thus, the denial of leave to proceed IFP is "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), because there would be no final judgment from which to appeal. See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) ("To be appealable as a final collateral order, the challenged order must constitute a complete, formal and, in the trial court, final rejection of a claimed right where denial of immediate review would render impossible any review whatsoever.") (internal quotation marks and citations omitted). On the foregoing basis, we conclude that we have jurisdiction over this appeal.

II

Lister filed suit against the Department of the Treasury and the Commissioner of the Social Security Administration in November 2003. Although her complaint is practically unintelligible, it appears that an administrative law judge denied social security benefits to Lister, and she wishes to appeal from that order. See R., Doc. 1 at 1 & Ex. A. Along with her complaint in the federal court, Lister concurrently filed a "Pauper's Affidavit," claiming to be disabled and on welfare and unable to pay the costs of filing suit. Id. Doc. 2. Thus, the district court was obliged to review the affidavit and screen her case under 28 U.S.C. §§ 1915(a) and (e). Lister failed, however, to set forth her income, her assets from all sources, and her expenses with sufficient specificity for the district court to evaluate her financial status.

The magistrate judge to whom the case was assigned quickly entered an order requiring Lister to cure the deficiencies in her filing; the order informed Lister that she had to complete a notarized "Motion for Leave to Proceed In Forma Pauperis and Supporting Affidavit" and that she also had to fill out Marshal forms and provide additional copies of her complaint for service of process. R., Doc. 4 at 1-2; see § 1915(d) (providing for service of process by court). Lister was also informed in the order that free forms for the motion, affidavit, and Marshal were available from the clerk's office. Instead of filling out and filing the proper forms, Lister filed a self-prepared motion to proceed IFP and second affidavit that again did not contain the requisite financial information. Id. Doc. 5. Because the magistrate judge could not yet determine Lister's financial status, he denied the motion and directed her to pay the required filing fee. Id. Doc. 6 at 1. Lister filed an untimely objection to the order and did not pay the fee. Id. Doc. 8. The district court affirmed the magistrate judge's order, id. Doc. 9, and this appeal followed.

III

We first address the jurisdictional issue of a magistrate judge's authority to issue final orders granting or denying IFP status. A magistrate judge's authority is narrowly prescribed by 28 U.S.C. § 636. Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir.1987) (per curiam). In Gee, we noted that "[m]agistrates may properly be allowed to hear motions to dismiss in forma pauperis actions," but that § 636 does not allow the magistrate to "make a final ruling on motions to dismiss." Id. We held that a court abuses its discretion by dismissing an in forma pauperis claim upon a magistrate's recommendations without providing a de novo determination as to objections to the magistrate's report. Id. at 1009.

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Our sister circuits have held...

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683 practice notes
  • Tucker v. United States, No. 18-1847C
    • United States
    • Court of Federal Claims
    • April 15, 2019
    ...for non-prisoners to be barred from being able to proceed in forma pauperis in federal court. See, e.g., Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) ("Section 1915(a) applies to all persons applying for [in forma pauperis] status, and not just to prisoners."); Haynes v......
  • Al-Villar v. Donley, No. CIV 12–0896 JB/CG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 3, 2013
    ...28 U.S.C. § 1915 is dispositive under Fed.R.Civ.P. 72(b) and cannot be issued by a magistrate judge, see Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005); Trujillo v. Williams, 465 F.3d 1210, 1217 n. 5 (10th Cir.2006) (noting that dismissal under § 1915(e) of suits filed wit......
  • Belhomme v. Gibson, No. CIV 14–0646 JB/LAM.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 16, 2014
    ...the affidavit requirement applies to all persons requesting leave to proceed I[n] F[orma] P [auperis].” Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005) (quoting Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n. 1 (11th Cir.2004) ).Professor Stephen M. Feldman notes ......
  • Brestle v. United States, No. 18-184C
    • United States
    • Court of Federal Claims
    • June 22, 2018
    ...word "prisoner" in 28 U.S.C. § 1915(a)(1) seemingly to indicate that the use of that word was too narrow); Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) ("Section 1915(a) applies to all persons applying for [in forma pauperis] status, and not just to prisoners."); Mannin......
  • Request a trial to view additional results
683 cases
  • Tucker v. United States, No. 18-1847C
    • United States
    • Court of Federal Claims
    • April 15, 2019
    ...for non-prisoners to be barred from being able to proceed in forma pauperis in federal court. See, e.g., Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) ("Section 1915(a) applies to all persons applying for [in forma pauperis] status, and not just to prisoners."); Haynes v......
  • Al-Villar v. Donley, No. CIV 12–0896 JB/CG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 3, 2013
    ...28 U.S.C. § 1915 is dispositive under Fed.R.Civ.P. 72(b) and cannot be issued by a magistrate judge, see Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005); Trujillo v. Williams, 465 F.3d 1210, 1217 n. 5 (10th Cir.2006) (noting that dismissal under § 1915(e) of suits filed wit......
  • Belhomme v. Gibson, No. CIV 14–0646 JB/LAM.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 16, 2014
    ...the affidavit requirement applies to all persons requesting leave to proceed I[n] F[orma] P [auperis].” Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005) (quoting Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n. 1 (11th Cir.2004) ).Professor Stephen M. Feldman notes ......
  • Brestle v. United States, No. 18-184C
    • United States
    • Court of Federal Claims
    • June 22, 2018
    ...word "prisoner" in 28 U.S.C. § 1915(a)(1) seemingly to indicate that the use of that word was too narrow); Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) ("Section 1915(a) applies to all persons applying for [in forma pauperis] status, and not just to prisoners."); Mannin......
  • Request a trial to view additional results

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