                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                          November 1, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 JAMES H. WILLIAMS,

              Plaintiff - Appellant,

 v.                                                          No. 11-5107
                                                (D.C. No. 4:11-CV-00360-GKF-TLW)
 CHEROKEE NATION                                             (N.D. Okla.)
 ENTERTAINMENT, L.L.C.,

              Defendant - Appellee.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


       James Williams appeals from the district court's denial of his motion for leave to

proceed in forma pauperis (IFP) to file a complaint and have it served. Finding no error

in the district court's ruling, we AFFIRM. Mr. Williams also moves this court for leave

        *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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
to proceed IFP on appeal. Based upon the updated affidavit and financial declaration Mr.

Williams has provided to this court on appeal, we GRANT this motion.

       “Although the district court's ruling is not a final order, denial by a District Judge

of a motion to proceed in forma pauperis is an appealable order under the Cohen

doctrine.” Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1310 (10th Cir. 2005) (internal

citations omitted). “Consistent with the language of [28 U.S.C.] § 1915(a)(1) that gives a

district court discretion to grant permission to proceed IFP, we review the district court's

denial of IFP status for an abuse of discretion.” Id. at 1312 (citing Martinez v. Kristi

Cleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004)).

       In June 2011, Mr. Williams filed a complaint in the U.S. District Court for the

Northern District of Oklahoma against his former employer, Cherokee Nation

Entertainment, LLC, alleging he was terminated in violation of the Family Medical Leave

Act of 1993. Mr. Williams petitioned the district court for leave to proceed IFP and

provided an affidavit alleging he was unemployed and disabled, and thus unable to pay

the cost to file his suit. This affidavit, filed June 29, 2011 (“June 29 affidavit”), listed

Mr. Williams’s assets as including $25.00 in total cash and savings and a vehicle worth

$1,000; his total debt included $863.24 for medical bills.1 Additionally, Mr. Williams

reported average monthly income from unemployment benefits and education assistance

totaling $2,200, and monthly expenses totaling $300. Based on the information in the

       1
       Mr. Williams reported his debt in his Motion for Leave to Proceed In Forma
Pauperis, filed June 9, 2011.

                                              -2-
June 29 affidavit, the district court determined that Mr. Williams was able to pay court

fees and costs and therefore denied the petition, without prejudice, on June 30, 2011. This

appeal timely followed.

       Title 28 U.S.C. § 1915(a)(1) grants a district court authority to “authorize the

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

therefor,” when the individual bringing the petition provides an affidavit and statement

showing that he or she is “unable to pay such fees or give security therefor.” To bring a

successful petition, Mr. Williams “must show a financial inability to pay the required

filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised in the [underlying] action.” Lister, 408 F.3d at 1312.

       The June 29 affidavit reflects Mr. Williams’s average monthly income as

exceeding his monthly expenses by nearly $1,900. This amount provided sufficient

grounds for the court to conclude that Mr. Williams had the financial means to pay court

fees and costs. We therefore conclude the district court did not abuse its discretion by

denying Mr. Williams’s IFP petition. We note that the district court’s denial was without

prejudice, allowing Mr. Williams leave to re-file his IFP petition if his financial

circumstances should change from those reported in the June 29 affidavit. The judgment

of the district court in denying Mr. Williams’s IFP petition is thus AFFIRMED.

       Turning to Mr. Williams’s motion to this court for IFP status on appeal, we look to

the affidavit and financial declaration Mr. Williams filed with this appeal. This more

recent affidavit, filed October 6, 2011 (“October 6 affidavit”), indicates that Mr. Williams
                                             -3-
presently has no income from any source, including unemployment benefits or education

assistance. Mr. Williams states he is living with relatives at no cost, and this assistance is

his only means of subsistence. Based upon the information in the October 6 affidavit, we

GRANT Mr. Williams’s motion to proceed IFP on appeal.

       In sum, we AFFIRM the district court’s denial of Mr. Williams’s motion to

proceed IFP, and we GRANT Mr. Williams’s motion to proceed IFP on appeal.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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