Sperow v. Melvin, 96-4219
| Decision Date | 26 August 1998 |
| Docket Number | No. 96-4219,96-4219 |
| Citation | 153 F.3d 780 |
| Parties | Earl D. SPEROW, Plaintiff-Appellant, v. Francis MELVIN, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Earl D. Spero, pro se.
Cacilia R. Masover, Office of the Atty. Gen., Civil Appeals Div., Chicago, IL, for Defendants- Appellees.
Before POSNER, Chief Judge, and BAUER and MANION, Circuit Judges.
The district court dismissed this prisoner civil rights suit for failure to state a claim. The prisoner, Sperow, filed a notice of appeal and asked the district judge, pursuant to 28 U.S.C. § 1915, to be permitted to proceed in forma pauperis on appeal, that is, without having to pay the full filing fee. The judge granted the request and assessed an initial partial filing fee, in accordance with § 1915(b)(1), of $2.22, and ordered Sperow to pay this fee within 45 days on pain of having his permission to proceed in forma pauperis rescinded. The 45 days passed without payment and the judge entered an order denying in forma pauperis status on appeal. Sperow has asked us for permission to proceed in forma pauperis, as we are authorized to allow even though the district judge has turned him down. See Fed. R.App. P. 24(a); Newlin v. Helman, 123 F.3d 429, 432 (7th Cir.1997); Baugh v. Taylor, 117 F.3d 197, 201 (5th Cir.1997).
As amended by the Prison Litigation Reform Act, the provisions of which are applicable to this case, 28 U.S.C. § 1915 sets forth three grounds for denying in forma pauperis status to a prisoner appellant: the prisoner has not established indigence, the appeal is in bad faith, the prisoner has three strikes. §§ 1915(a)(2), (a)(3), (g). The judge granted Sperow's request to proceed in forma pauperis, implying that none of the three grounds for denying it was applicable. The condition that the judge imposed (payment of the partial fee) was not based on any of the statutory grounds for denial of in forma pauperis status. The statute does not authorize a district judge to grant a request for in forma pauperis status on any condition, or to deny in forma pauperis status on appeal because the prisoner has not paid the partial fee. The failure to pay a filing fee normally leads to dismissal for want of prosecution, e.g., Newlin v. Helman, supra, 123 F.3d at 434; Williams-Guice v. Board of Education, 45 F.3d 161, 163-64 (7th Cir.1995); Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir.1995); 7th Cir. Internal Operating Proc. 7(a), but dismissal by the court in which the pleading was filed, which is to say,...
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