Gee v. Ruettgers, 10th Cir. (1997)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
JUN 3 1997
PATRICK FISHER
Clerk
DONALD GEE,
Plaintiff-Appellant,
v.
RONALD G. RUETTGERS, in his
individual capacity; DUANE
SHILLINGER, in his individual
capacity,
No. 95-8081
(D.C. No. 93-CV-152)
(D. Wyo.)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff, an inmate of the Wyoming Department of Corrections, filed a

civil rights complaint in district court alleging that defendants had interfered with
his outgoing mail and had punished him for making unflattering comments about
certain prison guards. After the close of testimony in the ensuing jury trial, the
district court directed a verdict in favor of plaintiff. The jury, however, returned
a verdict of only $1.00 in damages against each defendant. Plaintiff filed a notice
of appeal from this verdict. He also filed motions in the district court requesting
a court-ordered trial transcript and for leave to appeal in forma pauperis (IFP).
The district court denied both motions.
Plaintiff renews his request to proceed IFP on appeal in this court and also
reiterates his motion for a court-ordered transcript. We deny both requests.
Any court of the United States is authorized to allow a litigant to proceed
on appeal without prepayment of fees when the litigant submits an affidavit
stating, inter alia, that he or she is unable to pay filing fees or give security
therefor. See 28 U.S.C. 1915(a)(1)(1994). 1 While the purpose of the IFP
Section 1915 was significantly amended by the Prison Litigation Reform

Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996). The
amendments to 1915, however, do not apply to this case because plaintiff filed
his notice of appeal before April 26, 1996, the date President Clinton signed the
Act into law. See White v. Gregory, 87 F.3d 429, 430 (10th Cir.), cert. denied,
117 S. Ct. 528 (1996).
-2-
privilege is to ensure that persons are not barred from court access because of
indigency, see Neitzke v. Williams, 490 U.S. 319, 324 (1989),
Congress recognized . . . that a litigant whose filing fees and court
costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits. To prevent such abusive or captious litigation,
1915(d) authorizes federal courts to dismiss a claim filed in forma
pauperis if the allegation of poverty is untrue, or if satisfied that the action
is frivolous or malicious.
Id. In order to fulfill its responsibility to prevent abuse, a court may go beyond
the mere statement of income and inquire into additional relevant matters
including the applicants earning capacity and ability. Dreyer v. Jalet, 349 F.
Supp. 452, 459 (S.D. Tex. 1972). Such inquiry is especially appropriate when
the totality of the circumstances involved are weighed against the applicants
statement of poverty, and the result suggests incongruity. Id.; see also United
States v. Erickson, 506 F. Supp. 90, 91-92 (W.D. Okla. 1980) (examining
defendants personal finances and determining that they did not qualify as
indigents).
In the financial declaration accompanying his IFP motion to this court,
plaintiff stated that he earns $40.00 per month from his regular prison
employment and an additional $37.00 per month from a prison hobby. As of the
date of the affidavit, plaintiffs prison account stood at minus 23 cents. There is
further uncontroverted evidence in the record, however, in the form of an
-3-
affidavit and supporting documentation from the Director of the Wyoming

Department of Corrections, that plaintiffs prison account in 1995 saw activity
totalling over $900.00 and that plaintiff maintains a low balance in his inmate
account, by sending fairly substantial amounts to his family. Affidavit in
Support of Motion to Strike Petition for Injunction Directing Warden James
Ferguson to Provide Photocopying Services to Appellant at 3. Further, the affiant
states that, unlike some other penal institutions, the Wyoming State Penitentiary
provides all the necessities of life to prisoners, including necessary hygiene items.
See id. at 2-3. In light of this evidence, we determine plaintiffs allegation of
poverty to be untrue and, therefore, deny him permission to proceed on appeal in
forma pauperis.
Because plaintiff will not be permitted to proceed IFP, he is not entitled to
a free court-ordered transcript. See 28 U.S.C. 753(f) (limiting benefit to
persons permitted to proceed in forma pauperis). Further, even if plaintiff had
been allowed IFP status, he would need to obtain certification by the trial judge or
a circuit judge that the appeal is not frivolous (but presents a substantial
question). Id. Plaintiffs original motion for certification of appeal has already
been denied by this court. See Gee v. Ruettgers, No. 95-8081, Order (10th Cir.
Mar. 20, 1996).
-4-
Plaintiffs motion for leave to proceed on appeal without prepayment of

costs or fees is DENIED. This appeal is DISMISSED. The mandate shall issue
forthwith.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

Plaintiff, an inmate of the Wyoming Department of Corrections, filed a

Section 1915 was significantly amended by the Prison Litigation Reform

affidavit and supporting documentation from the Director of the Wyoming

Plaintiffs motion for leave to proceed on appeal without prepayment of

Entered for the Court

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