                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2007

Tucker v. Secretary HHS
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2596




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Recommended Citation
"Tucker v. Secretary HHS" (2007). 2007 Decisions. Paper 466.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/466


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CLD-342                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 07-2596
                                 ________________

                               KAREN E. TUCKER,

                                          Appellant

                                              v.

                             MICHAEL O. LEAVITT
                      Secretary of Health and Human Services
                    ____________________________________

                  On Appeal From the United States District Court
                           For the District of New Jersey
                            (D.C. Civ. No. 07-cv-02230)
                    District Judge: Honorable Robert B. Kugler
                  _______________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  August 16, 2007

          BEFORE: RENDELL, SMITH and JORDAN, CIRCUIT JUDGES

                             (Filed: September 6, 2007)

                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

     Karen E. Tucker appeals pro se from the order of the United States District Court


                                          1
for the District of New Jersey denying her application for leave to proceed with her

complaint in forma pauperis (“IFP”), without prepayment of fees, under 28 U.S.C.

§ 1915. We will reverse the District Court’s order and remand for further proceedings.

       The procedural history of this matter is straightforward. On May 9, 2007, Tucker

submitted her complaint along with her IFP application. In her IFP affidavit, she stated

that she was unemployed, but between December 2005 and April 2007, she earned

$400.00 in wages. She further stated she had no other sources of income, no cash and no

bank accounts, no real estate, and no other items of value. By order entered May 22,

2007, the District Court entered an order denying Tucker’s IFP application, directing the

Clerk to close the matter and allowing Tucker to pay the $350 filing fee within thirty days

to reopen the case. Rather than pay to reopen the case, Tucker filed this appeal. In her

notice of appeal she reiterated that she did not earn more than $400 during the seventeen

months between December 2005 and April 2007, and that she remains unemployed, has

no assets, and has no other sources of income.1

       We have jurisdiction under 28 U.S.C. § 1291, see Redmond v. Gill, 352 F.3d 801,

803 (3d Cir. 2003), and we review the District Court’s ruling for abuse of discretion, see

United States v. Holiday, 436 F.2d 1079, 1079 (3d Cir. 1971). IFP determinations are to

be made solely on the basis of indigence, without regard to the potential merit of a

complaint. See Deutsch v. United States, 67 F.3d 1080, 1084 n.5 (3d Cir. 1995); Roman


  1
    Tucker also completed an application and affidavit of poverty to pursue her appeal
with IFP status. This Court granted her IFP application on July 6, 2007.

                                             2
v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990). However, we have noted that “extreme

circumstances” might justify denying IFP status to an otherwise financially qualified

applicant, although we have not defined the circumstances for which such action would

be appropriate. See Deutsch, 67 F.3d at 1084 n.5.

       Here, the District Court denied the IFP application solely because Tucker “earns

sufficient income.” Based on the information averred in Tucker’s IFP application filed in

District Court, we disagree. There is no indication in the record that the District Court

believed that some other factor constituted an “extreme circumstance” warranting the

denial of IFP status for non-financial reasons. We conclude that the District Court’s

determination constitutes an abuse of discretion.

       Accordingly, we will summarily reverse the District Court’s judgment and remand

for further proceedings consistent with this opinion. We express no view as to the

possible merit of Tucker’s claim.




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