John David Kirk v. David G. Mills

103 F.3d 129 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. John David KIRK, Petitioner-Appellant, v. David G. MILLS, Respondent-Appellee. No. 96-5276. United States Court of Appeals, Sixth Circuit. Dec. 03, 1996. Before: JONES, SILER, and DAUGHTREY, Circuit Judges. ORDER — 1 — This pro se Tennessee state prisoner appeals a district court order denying his application to proceed in forma pauperis in his petition filed under 28 U.S.C. § 2254, for a writ of habeas corpus. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). — 2 — Seeking habeas relief, John David Kirk applied for leave to proceed in forma pauperis. Upon review of his application and the accompanying financial affidavit, the district court ordered Kirk to pay a $5.00 partial filing fee. The district court reasoned that Kirk's prison employment provided him sufficient funds each month to meet the $5.00 fee required for the filing of the action. The district court instructed the clerk to return the habeas petition to Kirk until such time as the fee was paid. The habeas petition remains unfiled. — 3 — In his timely appeal, Kirk reasserts that the district court improperly ordered him to pay a $5.00 filing fee. — 4 — We review a judgment denying a motion to proceed in forma pauperis for abuse of discretion. Phipps v. King, 866 F.2d 824, 825 (6th Cir.1988). A district court is required to state the reasons underlying a denial of a party's application to proceed in forma pauperis. Foster v. United States, 344 F.2d 698, 700 (6th Cir.1965). — 5 — The district court did not abuse its discretion. Kirk contends that the district court incorrectly concluded that he was able to pay $5.00. The court sufficiently set forth its rationale for denying Kirk's motion for in forma pauperis status. In this case, the district court noted that Kirk is employed by the prison and earns up to $40.00 per month. Thus, the court's rationale is that Kirk is not indigent and can easily afford a $5.00 filing fee. — 6 — Accordingly, the district court's judgment denying Kirk's motion to proceed in forma pauperis is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.