           Case: 13-11015   Date Filed: 11/05/2013   Page: 1 of 4


                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11015
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cv-24265-JLK


JUNHAO SU,

                                                            Plaintiff-Appellant,

                                  versus


FLORIDA INTERNATIONAL UNIVERSITY,
BOWLING GREEN STATE UNIVERSITY,
WILLIAM M. KURTINES,
THE BOARD OF TRUSTEES OF FLORIDA INTERNATIONAL UNIVERSITY,
THE BOARD OF TRUSTEES OF BOWLING GREEN STATE UNIVERSITY,

                                                        Defendants-Appellees.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (November 5, 2013)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.
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PER CURIAM:

      Junhao Su appeals pro se the denial of his motion for relief from an order

that denied his application to proceed in forma pauperis. See Fed. R. Crim. P.

60(b). Because the district court abused its discretion when it denied Su’s motion,

which argued that the district court applied an incorrect legal standard in denying

the application, we vacate the order denying Su’s motion for relief and remand

with instructions for the district court to reconsider Su’s application.

      Su filed a complaint against Florida International University and Bowling

Green State University and an application to proceed in forma pauperis. The

district court denied Su’s application on the ground that it was “without sufficient

funds to finance the prosecution of civil litigants.” Su then paid his filing fee.

      Su moved for relief from the order denying his application. Su challenged

the determination that budgetary restraints prevented him from proceeding without

the prepayment of fees and requested “leave to proceed in forma pauperis.” Su

submitted a letter from the Clerk stating that “[t]here was no set amount of funding

for IFP applications” and the decision “[w]hether petitions are granted or not does

not depend upon available funding.”

      The district court denied Su’s motion. See id. The district court ruled that

Su “produced no . . . evidence” that he would “suffer a substantial injustice” from

having his application denied because he was able to “borrow the $350 filing fee.”


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The district court stated that it had “broad discretion to deny an application to

proceed without prepayment,” and it rejected as “irrelevant” Baker’s argument

about “[t]he frequency with which . . . applications [had been] granted.”

      We review the denial of a motion for relief from a judgment for an abuse of

discretion. Rice v. Ford Motor Co., 88 F.3d 914, 918 (11th Cir. 1996). An abuse

of discretion occurs when the district court “applies an incorrect legal standard,

follows improper procedures in making the determination, ... makes findings of

fact that are clearly erroneous . . . [or] appl[ies] the law in an unreasonable or

incorrect manner.” Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir. 2004).

A party may move for relief from a judgment for “any . . . reason that justifies

relief,” Fed. R. Civ. P. 60(b)(6), and that motion “is to be given a liberal and

remedial construction,” Nisson v. Lundy, 975 F.2d 802, 807 (11th Cir. 1992).

      The district court abused its discretion when it denied Su’s motion for relief.

Su argued that the district court applied an incorrect legal standard in determining

that the right to proceed without the prepayment of costs was “depend[ent] upon

available funding.” When a district court considers an application to proceed in

forma pauperis, “[t]he only determination to be made . . . is whether the statements

in the affidavit satisfy the requirement of poverty.” Martinez v. Kristi Kleaners,

Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (quoting Watson v. Ault, 525 F.2d 886,

891 (11th Cir. 1976)). And Su’s argument is not moot based on his payment of the


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filing fee because a litigant who proceeds in forma pauperis is entitled to other

benefits in addition to the waiver of a filing fee, like having process and subpoenas

served by officers of the court. See 28 U.S.C. § 1915(d). Because the district

court applied the wrong standard when ruling on Su’s application, we vacate the

order that denied Su’s motion for relief and remand for the district court to

reconsider Su’s application. On remand, the district court should determine

whether Su satisfied the poverty requirement and “provide a sufficient explanation

for its determination on IFP status to allow for meaningful appellate review.”

Martinez, 364 F.3d at 1307.

      VACATED AND REMANDED.




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