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Plaintiff-Appellant,
v.
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS; JOHN W. MAGAW; JEFF SARNACK, Special Agent, in his individual and official capacity; RICHARD A. ROWLINS, Special Agent, in his individual and official capacity; STEPHEN L. OTT, Special Agent, in his individual and official capacity; ROBERT F. BOLAND, Special Agent, in his individual and official capacity; DUANE A. JACKSON, Special Agent, in his individual and official capacity; JOHN N. MINICHINO, Special Agent, in his individual and official capacity; COLENE M. BERTELSEN, Special Agent, in her individual and official capacity; NELS C. NELSON, Special Agent (Montana), in his individual and official capacity; U.S. PROBATION, District of Utah; DARCI SMITH, Utah Probation Officer, in her individual and official capacity; UNITED STATES SECRET SERVICE; GLEN J. PASSEY, Secret Service Agent, in his individual and official capacity; IRENE SWENSON, Utah Department of Public Safety Officer, sued in her individual and official capacity; FIRST SECURITY BANK, N.A.; ROBYN HILLER, Bank Officer; LORI E. FERGUSON, Bank Officer; JOEL VAN ARDEN; JACK DAVIS CADLE; KOSMO ANDROULIDAKIS; DEXTER DAVIS; LEROY (TONY) MARTINEZ; THOMAS ALLEN BECK; ROBERT LEE PETERSON, also known as Robbie Peterson; LONNIETA MARIE PAYNE; ANTHONY (TONY) CALCAGNO; JESSE THOMAS, Department of Corrections Ex-Officer,
Defendants-Appellees.
On November 10, 1997, the District of Columbia court ordered Mr. Aston to pay an initial partial filing fee of $10.78. Following transfer of the case, the United States District Court for the District of Utah noted that Mr. Aston had not paid the partial filing fee ordered by the District of Columbia court and ordered Mr. Aston to pay the sum of $10.78 within thirty days or his § 1983 complaint would be dismissed. When Mr. Aston failed to comply, the Utah court dismissed his action without prejudice on December 15, 1998. See Fed. R. Civ. P. 41(b) (vesting the district court with discretion to dismiss an action for failure to comply with an order of court).
Mr. Aston's assertion on appeal that the Utah court's attempt to charge him a filing fee denied him access to the courts is without merit. "[P]roceeding [in forma pauperis] in a civil case is a privilege, not a right--fundamental or otherwise." White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998), cert. denied, 119 S. Ct. 1150 (1999) (quotation omitted); see also Roller v. Gunn, 107 F.3d 227, 231 (4th Cir. 1997) (rejecting prisoner claim that fee provisions of the PLRA, 28 U.S.C. § 1915(b), violated his constitutional rights).
The PLRA system requires litigants to consider whether the merits of a claim are worth the cost of bringing an action. PLRA's requirements for paying a minimal initial fee followed by small installments until the entire fee is paid do not constitute an unconstitutional denial of access to the courts. See Roller, 107 F.3d at 231. Moreover, the Utah court dismissed Mr. Aston's action without prejudice leaving Mr. Aston with the ability to refile his complaint.
Mr. Aston has filed a motion to proceed in forma pauperis in this court. Because Mr. Aston was not incarcerated at the time he filed his appeal, the provisions of PLRA do not apply to this appeal. See 28 U.S.C. § 1915(a), (b), (h). After reviewing Mr. Aston's affidavit and the other materials filed in support of his motion, we conclude that he has not demonstrated "a financial inability to pay the required fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal." DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Mr. Aston's affidavit indicates that he is no longer incarcerated and is employed. Therefore, we deny his request to proceed on appeal in forma pauperis, and order him to pay the full appellate filing fee of $105.00 to the Clerk of the District Court for the District of Utah, within twenty days of the date of this order.
Under the circumstances presented here, we find no abuse of discretion in the court's dismissal of Mr. Aston's civil rights action. Accordingly, the judgment is AFFIRMED.
ENTERED FOR THE COURT
Circuit Judge
*. 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.
1. 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
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