Vance v. District Court of Fremont County

• Decision Date: 24 November 1995
• Citation: Vance v. District Court of Fremont County, 908 P.2d 1189 (Colo. App. 1995)
• Docket Number: 94CA1048
• Parties: Vernon VANCE, Plaintiff-Appellant, v. DISTRICT COURT OF FREMONT COUNTY, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 1189

908 P.2d 1189

Vernon VANCE, Plaintiff-Appellant, v. DISTRICT COURT OF FREMONT COUNTY, Defendant-Appellee.

No. 94CA1048.

Colorado Court of Appeals Div. I.

Nov. 24, 1995.

Vernon Vance, Pro Se.

No Appearance for Defendant-Appellee.

Opinion by Judge PLANK.

Plaintiff, Vernon Vance, appeals the trial court's dismissal of his complaint against defendants, Colorado Department of Corrections; Mark McGoss, Warden of the Arrowhead Correctional Center; Tony D. Reid, Acting Deputy Warden of the Arrowhead Correctional Center; and Warren Fox, Disciplinary Hearing Officer of the Arrowhead Correctional Center, for failure to pay the district court filing fee. We reverse the judgment of dismissal and the order denying plaintiff's motion for leave to proceed in forma pauperis, and remand the matter to the trial court for further proceedings.

Plaintiff, an inmate of the Centennial Correctional Facility, was charged with a disciplinary rule violation in September 1993. Plaintiff's administrative appeal became final on November 15. On December 2, 1993, plaintiff filed a C.R.C.P. 106(a)(4) complaint in the district court seeking review of a disciplinary action taken against him by defendants. Plaintiff also filed a motion for leave to proceed in forma pauperis, supported by an affidavit of indigency.

Upon addressing defendant's motion, the trial court determined it did not have sufficient information to rule on the motion and ordered plaintiff to provide a statement of his inmate bank account from the period of November 3 through December 2, 1993. That statement showed he had withdrawn funds for purchases at the prison canteen in the weeks prior to the filing of his complaint. The trial court then ordered plaintiff to provide the court with an itemization of his expenditures at the prison canteen.

After receipt of a list of plaintiff's canteen expenditures, the trial court denied plaintiff's motion for leave to proceed in forma pauperis and ordered him to pay the $80 court filing fee. Plaintiff failed to pay the fee and the district court dismissed his complaint, finding that in the three weeks immediately prior to filing his complaint, plaintiff had made discretionary canteen purchases totalling approximately $96. Thus, noting that plaintiff has no expenses for food, housing, transportation, or health care, the trial court concluded that plaintiff would have had sufficient assets to pay the $80 filing fee if he had not made these purchases. The court concluded that plaintiff should not be relieved of his obligation to pay the filing fee because he chose to spend his assets on discretionary items.

I.

Plaintiff first contends it was error for the trial court to look beyond the face of his financial affidavit and to consider his expenditures. We disagree.

The trial court may waive a litigant's filing fees pursuant to § 13-16-103, C.R.S. (1995 Cum.Supp.), which provides in pertinent part:

If the judge or justice of any court, including the supreme court, is at any time satisfied that any person is unable to prosecute or defend any civil action or special proceeding because he is a poor person and unable to pay the costs and expenses thereof, the judge or justice, in his discretion, may permit such person to commence and prosecute or defend an action or proceeding without the payment of costs.

In order to determine whether to permit a person to proceed under this statute without payment of costs, the trial court may order the production of those documents and evidence it deems necessary to resolve the issues. Specifically, the trial court may consider that person's complete financial condition, including the timing and nature of the spending in the weeks immediately preceding commencing the action.

II.

Plaintiff next contends that the trial court abused its discretion in denying his motion to proceed in forma pauperis. We agree.

The decision whether a litigant may commence an action without payment of costs rests within the sound discretion of the trial court and is reviewable only for abuse of discretion. Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970). Abuse of discretion "is a legal term reflecting the opinion of an appellate court that the trial court committed an error of law in the circumstances." Cook v. District Court, 670 P.2d 758, 761 (Colo.1983).

If the record does not support a trial court's finding that a litigant is not indigent, reversal is appropriate. Medina v. District Court, 177 Colo. 185, 493 P.2d 367 (1972).

Under § 13-16-103, whether a litigant may prosecute a civil action without the payment of costs depends upon whether the court is satisfied that the litigant is "a poor person and unable to pay the costs and expenses" of suit. See Almarez v. Carpenter, supra. However, an individual need not be absolutely destitute to qualify as a "poor person." See Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) (addressing indigency determination for purposes of appointing counsel in criminal cases).

Here, the record reveals that plaintiff had less than $80 in his inmate account when he filed his complaint. Further, on November 15, the day on which the period for filing his C.R.C.P. 106(a)(4) action began to run, plaintiff had $38.63 in his account. Between that day and the day he filed the complaint, he received an additional $40. Thus, at no time during the relevant period did he have $80 available for a filing fee. His expenditures for necessities, such as personal hygiene items, postage and telephone calls, totalled $28.87, leaving him with far less than was needed for the filing fee.

The trial court computed its figures using November 3 as a starting point, thirty days prior to the actual filing. Even if we were to hold that plaintiff had to start saving on that date, he still lacked the requisite funds. On November 3, his balance was $28.06. If he spent nothing until he filed his action in district court, his wages of $5.25 per month plus other funds received would have resulted in a balance of $105.93 on December 2. However, between November 3 and December 2, plaintiff spent $44.57 on necessities. Thus, on December 2, he had a total of $61.36 in his account, which does not cover the filing fee.

We decline to require that a prisoner must develop a savings plan for the possibility that during that person's incarceration he or she will have to file a lawsuit. Prisoners need not deprive themselves of the small amenities of life which they are allowed to acquire in prison in order to proceed in forma pauperis. See Souder v. McGuire, 516 F.2d 820 (3rd Cir.1975); see also In re Smith, 600 F.2d 714 (8th Cir.1979).

Thus, these circumstances establish plaintiff's indigency as a matter of law. The finding by the trial court to the contrary is not supported by the record. See Medina v. District Court, supra.

We note that since the filing of this action, the General Assembly has adopted § 13-17.5-103, C.R.S. (1995 Cum.Supp.), effective July 1, 1995, which states:

Any inmate who files a motion to proceed as a poor person, pursuant to section 13-16-103, in a state civil action against any public defendant shall attach to the motion copies of all inmate account records held by the detaining facility and copies of all transactions concerning the account made for the month in which the complaint is filed and eleven months before the state civil action is filed. If the inmate account demonstrates that the inmate has, or had during the time period that is reviewed pursuant to this section, sufficient funds to pay the costs of filing and service of process, the motion to proceed as a poor person shall be denied.

This section is not pertinent here as it was not in effect when these proceedings were commenced.

III.

Finally, as plaintiff did not raise the issue of partial payment in the trial court, we do not address it here.

Accordingly, the judgment of dismissal and the order denying plaintiff's motion for leave to proceed in forma pauperis are reversed, and the cause is remanded for further proceedings in accordance with this opinion.

TAUBMAN, J., concurs.

METZGER, J., dissents.

JUDGE METZGER, dissenting.

Because, in my view, the trial court did not abuse its discretion in dismissing plaintiff's complaint, I respectfully dissent from part II of the majority's opinion.

On September 18, 1993, plaintiff was charged with assault of several Department of Corrections staff persons. He was found guilty at a disciplinary hearing held and a sanction was imposed. Internal administrative appeal procedures resulted in an affirmance of the decision on November 15, 1993.

Plaintiff filed this action on December 3, 1993, and attached an affidavit of indigency in support of his request to proceed in forma pauperis.

Thereafter, the trial court ordered that plaintiff file a statement reflecting the balance of his inmate account between November 3 and December 3, 1993. Plaintiff sent a printout showing credits of $70 in money orders and $8.12 in payroll. Debits totalled $106.07 and, as of December 2, 1993, according to the Department of Corrections, plaintiff had an account balance of $56.96.

Thereafter, the court then ordered that plaintiff provide an itemization of his canteen expenses for November 9, November 16, and...