818 F2d 861 Trivett v. A Neff

818 F.2d 861
Unpublished Disposition

Thomas Ritter TRIVETT, Plaintiff-Appellant,
v.
Carl A. NEFF, Supt., Defendant-Appellee.

No. 86-7383.

United States Court of Appeals, Fourth Circuit.

Submitted March 25, 1987.
Decided May 15, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before WIDENER, MURNAGHAN and ERVIN, Circuit Judges.

Thomas Ritter Trivett, appelant pro se.

PER CURIAM:


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1

Thomas Trivett filed a civil rights action pursuant to 42 U.S.C. Sec. 1983 and requested leave to proceed in forma pauperis. After determining that $28.03 represented fifteen percent of deposits made to Trivett's inmate account over the preceding six months, the court granted leave to proceed in forma pauperis conditioned on payment of the partial fee. After notification that he could explain any special circumstances to excuse payment, Trivett stated that he had no money and that an Alabama district court had not required a fee under the same facts.

2

Finding insufficient cause to excuse payment, the court gave Trivett sixty days to pay his fee. Once again, Trivett requested in forma pauperis status stating that requirement of a fee would be unconstitutional. The court found Trivett's argument unpersuasive and set December 23, 1986, as the payment deadline. On December 2, 1986, Trivett filed this appeal. We find that there has been no final, appealable order in this case; therefore, this Court lacks jurisdiction to review the appeal. See 28 U.S.C. Sec. 1291.

3

Trivett was issued a conditional order which provided him with the option of proceeding in forma pauperis upon payment of a partial fee. The order did not deny Trivett leave to proceed in forma pauperis but warned him that this status could be denied if the fee were not paid. The order clearly contemplated entry of another order regarding in forma pauperis status should Trivett fail to pay the partial fee.

4

Until such an order has been entered, the district court's action on Trivett's request for in forma pauperis status is not final or appealable. Cf. Navarro v. District Director of United States Immigration and Naturalization Service, 539 F.2d 611 (7th Cir. 1976)(order stating that summary judgment will be granted on certain conditions not final until district court finds conditions and enters judgment). We therefore lack jurisdiction to consider this appeal.

5

Leave to proceed in forma pauperis is denied, and the appeal is dismissed for lack of jurisdiction. As the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

6

DISMISSED.