Sellers v. U.S., 89-7135

• Decision Date: 29 August 1989
• Docket Number: No. 89-7135,89-7135
• Citation: 881 F.2d 1061
• Parties: W. Foster SELLERS, Plaintiff-Appellant, v. UNITED STATES of America, J.D. Southerland, Warden, Charlie Gilliam, Counselor, Dana Newell, Case Manager, S. Armes, Counselor, Larry Feltcamp, Food Service Administrator, Mr. Hardy, Assistant Food Service Administrator, A.D. Heard, Ralph Lilas, Jack Babbs, Ms. Mary Wilson, Mr. Jack Tanner, Mr. Hearst and Mr. Humphery, Food Service Foremen, Ms. Houzer, Mr. Del Valle Ferrer and H. West, Physician Assistants, Defendants-Appellees. Non-Argument Calender.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1061

881 F.2d 1061

W. Foster SELLERS, Plaintiff-Appellant, v. UNITED STATES of America, J.D. Southerland, Warden, Charlie

Gilliam, Counselor, Dana Newell, Case Manager, S. Armes,

Counselor, Larry Feltcamp, Food Service Administrator, Mr.

Hardy, Assistant Food Service Administrator, A.D. Heard,

Ralph Lilas, Jack Babbs, Ms. Mary Wilson, Mr. Jack Tanner,

Mr. Hearst and Mr. Humphery, Food Service Foremen, Ms.

Houzer, Mr. Del Valle Ferrer and H. West, Physician

Assistants, Defendants-Appellees.

No. 89-7135

Non-Argument Calender.

United States Court of Appeals, Eleventh Circuit.

Aug. 29, 1989.

W. Foster Sellers, Marion, Ill., pro se.

Frank W. Donaldson, U.S. Atty., Patty Bortz, Asst. U.S. Atty., Marvin Neil Smith, Jr., Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before HILL, ANDERSON, and EDMONDSON, Circuit Judges.

PER CURIAM.

Petitioner, an inmate confined to a federal correctional facility, filed this civil rights complaint, seeking damages and injunctive relief from several prison agents who allegedly failed to provide him with proper medical treatment. Petitioner sought to proceed in forma pauperis. His application stated that he is unemployed, but receives $20 to $50 per month from his mother and brother to purchase needed items. At the time he filed his complaint, petitioner had an account balance of $34.72 and an average monthly balance of $47 for the preceding six months.

The magistrate required petitioner to pay a $14 partial filing fee, and specified that his failure to pay or explain non-payment within the allotted time would result in dismissal of the action. As an explanation for non-payment, petitioner submitted a financial affidavit explaining his expenses. Petitioner's affidavit indicated that each month he spends $28 for food to supplement his prison diet which he claims is necessary due to his health problems; $5 for copying; and $10 for postage. Petitioner stated that he buys personal hygiene items with any spare money and spends between $56 and $80 annually for tennis shoes which he claims are required for his medically necessary daily exercise. In addition, petitioner stated that he owes $2000 to his brother.

The magistrate concluded that petitioner's expenditures were discretionary and again ordered petitioner to pay the partial filing fee. Petitioner filed objections with the district court. The district court reviewed petitioner's affidavit de novo, found that petitioner's spending was discretionary, and ordered that the action be dismissed due to petitioner's failure to pay the partial filing fee. Petitioner filed a notice of appeal and a request to proceed in forma pauperis on appeal. The district court declined to characterize the appeal as not taken in good faith and granted petitioner's application to proceed in forma pauperis on appeal.

On appeal, petitioner argues that the district court abused its discretion in ordering him to pay a partial filing fee of $14 and in dismissing his complaint when he failed to pay the fee.

District courts enjoy wide discretion in deciding whether a partial filing fee is fair and appropriate in a particular case. Johnson v. Kemp, 781 F.2d 1570, 1571 (11th Cir.1986); Collier v. Tatum, 722 F.2d 653, 657 (11th Cir.1983). In setting a partial fee, the court may consider the purpose of the rule imposing the filing fee, the litigation history of the petitioner, ¹ the apparent good faith in prosecution of the lawsuit, the actual dollars involved as well as the percentages, and our basic policy that this court is open to all good faith litigants,...