                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                     December 13, 2005
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                         Clerk of Court


 JOHN E. LEMONS,

          Plaintiff-Appellant,
 v.

 K.C. MO. POLICE, BOARD OF
 COMMISSIONERS; DET. REED;
                                                      No. 05-1254
 RAMONA LEWIS; TACO BELL IN
                                              (D.C. No. 05-cv-00626-ZLW)
 COUNTY OF CLAY, MO; CLAY
                                                       (D. Colo.)
 COUNTY SHERIFF DEPARTMENT,
 two unknown det. who tried to make
 me sign the three year
 plea-bargain...from the K.C. MO
 Police Department,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.




      *
        After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
      Plaintiff-Appellant John E. Lemons, appearing pro se, filed a complaint in

the district court against various state officials and Taco Bell. The district judge

ordered Mr. Lemons to submit his motion to proceed in forma pauperis (IFP) on

the proper form within thirty days. Mr. Lemons filed with the district court a

“Motion for Appeal and Mistrials,” in which he claimed he was granted leave to

proceed pursuant to 28 U.S.C. § 1915 in Clay County, Missouri. As a result, the

district court denied Mr. Lemons’s claim for IFP status and dismissed his

complaint without prejudice. This appeal followed.

I. Discussion

      Section 1915(a) states that a district court “may authorize the

commencement . . . of any suit [or] action . . . without prepayment of fees or

security therefor, by a person who submits an affidavit that includes a statement

of all assets such [person] possesses that the person is unable to pay such fees or

give security therefor.” See also Lister v. Dep’t of the Treasury, 408 F.3d 1309,

1312 (10th Cir. 2005) (noting that section 1915(a) applies to all persons applying

for IFP status). Thus, “to succeed on a motion to proceed IFP, the movant must

show a financial inability to pay the required filing fees.” Id. (emphasis added.)

The district court does not abuse its discretion in denying IFP status for failure to

fill out the proper forms or to otherwise provide the district court with the

requisite information. See id. at 1313. Mr. Lemons did not fill out the proper


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forms in this case despite the district court’s previous order directing Mr. Lemons

to “file on the proper, Court-approved form a motion and affidavit for leave to

proceed pursuant to 28 U.S.C. § 1915.” Accordingly, the district court correctly

dismissed Mr. Lemons’s complaint without prejudice.

      While the denial of leave to proceed IFP is itself a final, appealable order

over which we have jurisdiction, Roberts v. U.S. Dist. Ct., 339 U.S. 844, 845

(1950) (per curiam), dismissal of a complaint without prejudice is generally not

final or appealable, Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th

Cir. 2001). “The critical determination as to whether an order is final is whether

plaintiff has been effectively excluded from federal court under the present

circumstances.” Id. (quotations, alteration omitted). Mr. Lemons has not been

effectively excluded from federal court.

      According to the district court order denying his request for IFP status and

dismissing his complaint without prejudice, Mr. Lemons may initiate a new action

by 1) refiling his complaint and 2) paying the $250.00 filing fee required under 28

U.S.C. § 1914 or submitting a completed motion and affidavit for leave to

proceed pursuant to 28 U.S.C. § 1915 on the proper, Court-approved form, which,

along with the instructions for the form, can be found in the District Court for the

District of Colorado’s Guide for Filing a Civil Suit. We therefore lack

jurisdiction to consider the merits of Mr. Lemons’s complaint.


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III. Conclusion

      We therefore DISMISS his appeal. We conclude that Mr. Lemons has

provided this court with sufficient information to ascertain his financial status and

therefore GRANT his motion for leave to proceed on appeal pursuant to § 1915. 1



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




      1
         Because we are dismissing this appeal, we also DISMISS as moot any
other requests contained in Mr. Lemons’s motion pursuant to Fed. R. Civ. P. 9.

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