20 F.4th 734 - Fourstar v. Williams

Appellate Case: 21-1094 Document: 010110620558 Date Filed: 12/17/2021 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 17, 2021

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

VICTOR CHARLES FOURSTAR, JR.,

Petitioner - Appellant,

v. No. 21-1094

CHARLES WILLIAMS, Warden at FCIEnglewood, CO,

Respondent - Appellee.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:21-CV-00418-GPG)
_________________________________

Submitted on the briefs:*

Victor Charles Fourstar, Jr., Pro Se.
_________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and MATHESON, Circuit Judges.
_________________________________

TYMKOVICH, Chief Judge.
_________________________________

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Appellate Case: 21-1094 Document: 010110620558 Date Filed: 12/17/2021 Page: 2

Victor Charles Fourstar, Jr., appeals the district court’s denial of his in forma

pauperis application. His underlying claim is for compassionate release under

28 U.S.C. § 2241

. The claim is based primarily on the alleged understaffing of prisons

 during the COVID-19 pandemic. The district court denied Fourstar’s IFP motion

 because it found that Fourstar did have the funds to pay the five-dollar filing fee.

 Fourstar appealed that decision on March 19, 2021.1 But on March 30, 2021,

 Fourstar paid the filing fee. Because Fourstar paid the filing fee, this particular

 denial of IFP status is not reviewable on collateral appeal. Thus, we have no

 jurisdiction and must dismiss his appeal.

        The denial of an in forma pauperis application is usually one of the small class

 of decisions that may be appealed before the district court issues a final judgment.

 See Lister v. Dep’t Treasury,

408 F.3d 1309, 1311

 (10th Cir. 2005) (citing Cohen v.

 Beneficial Indus. Loan Corp.,

337 U.S. 541

 (1949)). But we have appellate

 jurisdiction over an IFP denial only if the denial effectively bars further litigation.

 Cohen, 377 U.S. at 546 (interpreting

28 U.S.C. § 1291

). To be reviewable, a

 collateral order must “render impossible any review whatsoever.” Firestone Tire &

 Rubber Co. v. Risjord,

449 U.S. 368, 376

 (1981). Where a petitioner pays his filing

 fee, the denial of his IFP motion does not bar further litigation. The petitioner will



        1
          Fourstar’s brief does not actually address the denial of his IFP motion.
 Because Fourstar did not advance a “reasoned, nonfrivolous argument on the law and
 facts” regarding the district court’s denial of his IFP motion, his motion to proceed in
 forma pauperis on appeal is also denied. See Lister v. Dep’t Treasury,

408 F.3d 1309, 1310

 (10th Cir. 2005).
                                             2
Appellate Case: 21-1094    Document: 010110620558         Date Filed: 12/17/2021   Page: 3



 have the opportunity to contest the IFP denial after a final judgment is issued. Thus,

 the denial is not a final, appealable order under Cohen. Here, since Fourstar paid his

 filing fee, we lack subject matter jurisdiction to hear his appeal.

       We therefore dismiss this appeal for lack of jurisdiction and remand for further

 proceedings in the district court.




                                             3