110 F.3d 73
97 CJ C.A.R. 482
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Randolph John AMEN, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 96-5146.
(D.C.No. 95-C-4-H)
United States Court of Appeals, Tenth Circuit.
April 1, 1997.
Mr. Amen appeals from the district court's dismissal of his complaint against the United States based upon the magistrate's report and recommendation, I R. doc. 67, the magistrate's order denying him leave to file a second amended complaint, I R. doc. 68 and the district court's decision to dismiss 31 parties for misjoinder, leaving only the government remaining. Aplee. App. 60-61 (doc. 49). He also seeks leave to proceed on appeal without prepayment of costs or fees.
Our review of the district court docket sheet indicates that Plaintiff was not granted leave to proceed in forma pauperis [IFP] in that court. I R. doc. 2, 33 (denying reconsideration for leave to proceed IFP), & Clerk's Minutes of 5/26/95 "USA questions whether filing fee has been pd will be addressed by Ct." Our inquiry of the district court clerk indicates that Mr. Amen has not paid the district court filing fee. See 28 U.S.C. § 1914(a). Given these facts, the district court should have dismissed the complaint without prejudice. Although a district court's decision denying leave to file IFP status is appealable, Ragan v. Cox, 305 F.2d 58, 59 (10th Cir.1962), no appeal has been taken on that ground.
Subsequently, the district court denied Plaintiff's motion for leave to appeal in forma pauperis. I R. doc. 75. That matter is now before us. Based on the foregoing, Plaintiff's motion to proceed on appeal without prepayment of costs or fees is DENIED, see 28 U.S.C. § 1915(e)(2); LaFevers v. Saffle, 936 F.2d 1117, 1120 (10th Cir.1991), and the matter is REMANDED to the district court with instructions to VACATE its merits orders and enter a judgment of dismissal without prejudice within 30 days. Upon compliance therewith, the appeal shall be DISMISSED.
IT IS SO ORDERED.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument
