Carter v. Hardy

¶5GEE, Circuit Judge:

¶6Carter, whose past history as a litigant amply warrants the skepticism implicit in the rulings on appeal,1 brings to us the dismissal of his § 1983 action seeking ex-pungement of various of his convictions from state records. The district court dismissed Carter’s action with prejudice where he failed to appear in person, as directed, at any of a series of scheduled and rescheduled hearings at which he was to show cause why he was unable to pay court costs. These were ordered, despite Carter’s having filed an affidavit of indigency fair on its face and under penalty of perjury indicating assets of $2 American, because of Carter’s egregious track record of hobby litigation and abuse of the judicial system. We note that his complaint contains one claim possessing arguable merit, that grounded in a federal judgment ordering a judgment of acquittal in one of the state cases complained of.

¶7We note also Carter’s complaint that the transportation expense from his Colorado residence to court would equal or exceed the filing fees in question, so that even were he to succeed at the scheduled hearing, he would have been unjustly mulcted, and that as an indigent he could foot neither expense. We conclude that Carter has a point, and accordingly that we must vacate the order appealed from and remand for a determination whether Carter’s indigency cannot be determined in some other manner than one necessitating his interstate travel to the site of the court.2

¶8VACATED and REMANDED.