Case: 19-11952   Date Filed: 06/04/2020   Page: 1 of 7



                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11952
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:19-cv-21283-FAM



ADEM ALBRA,

                                                           Plaintiff-Appellant,

                                 versus

THE BOARD OF TRUSTEES FOR MIAMI DADE COLLEGE,

                                                         Defendant-Appellee.

                      ________________________

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

                             (June 4, 2020)



Before MARTIN, BRANCH, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      In this interlocutory appeal, Adem Albra, proceeding pro se, appeals the

district court’s denial of his motion for leave to proceed in forma pauperis (“IFP”)

in his civil action against the Board of Trustees for Miami Dade College (“the

Board”). Reversible error has been shown; we reverse the denial of Albra’s IFP

motion, vacate the dismissal of Albra’s civil action, and remand for further

proceedings.

      Together with his civil complaint, Albra filed in the district court a form

application for leave to proceed IFP. On the form, Albra alleged that he had been

unemployed since February 2012. Albra said he had $10 in his bank account,

owned a car worth $800, and owed $3500 in credit card debt. Albra declared

under penalty of perjury that the information on the IFP form was true. Albra also

moved to have the United States Marshals Service serve process on the Board once

his IFP motion was granted. Without explanation, the district court denied Albra’s

IFP motion and denied as moot Albra’s motion for service of process.

      Albra moved for reconsideration of his motions. Albra asserted he had no

income and had received no other means of support for over seven years. Albra

contended he was unable to work because of the Board’s conduct that was the

subject of his complaint. Albra also identified two other instances in which he had


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been granted IFP status based on a nearly identical application: once by this Court

in an unrelated appeal in 2019 and once by the district court in a case filed one

month after Albra filed this civil action. Without explanation, the district court

denied Albra’s reconsideration motion.

       In May 2019, Albra filed a notice of appeal challenging the district court’s

denial of IFP. Albra moved the district court for leave to proceed IFP on appeal.

In support of that motion, Albra said he owned a car worth $300 and a home worth

$101,000 on which he owed $86,000. Albra also alleged he received $174 per

month in public assistance and had $1050 in monthly expenses. The district court

denied Albra’s IFP motion with this explanation: “According to Plaintiff’s own

affidavit, he owns a home and a car, and has not even attempted, in more than

twelve years since February 5, 2007, to seek employment, despite no apparent

reason for being unable or unwilling to do so.” This Court later granted Albra

leave to proceed IFP on appeal.*



*
  We note that Albra first listed his ownership interest in a house when he applied for leave to
proceed IFP on appeal. In seeking IFP status in the district court and then on appeal, Albra
completed two different standard affidavit forms: one supplied by the district court and one
supplied by this Court. On the district court’s form, Albra made no mention of owning a house.
Then, on this Court’s form -- which provided a separate line prompting applicants to list “Home
(Value)” -- Albra said he owned a house valued at $101,000 on which $86,000 was still owed.

That Albra appears to have some equity in his house, however, has no impact on the outcome of
this appeal. The district court’s denial of IFP at issue here was based upon information Albra
provided on the district court’s form, which listed no house. Nor did the district court indicate
that its ruling was based on a supposed misrepresentation made on the affidavit of indigency.
Moreover, in granting Albra leave to proceed IFP on appeal and concluding that Albra qualified
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       In July 2019 -- while this appeal was pending -- the district court sua sponte

ordered Albra to show cause why his civil action should not be dismissed for

failure to serve the summons and complaint on the Board within 90 days. In

response, Albra explained he was unable to afford service of process and that

resolution of this interlocutory appeal about his eligibility for IFP status affected

directly his ability to effect service on the Board. Albra also moved to stay the

district court proceedings pending resolution of this appeal. The district court

denied the motion to stay and dismissed without prejudice Albra’s civil action for

failure to serve the Board in compliance with Rule 4(m) of the Federal Rules of

Civil Procedure.

       We review the denial of a motion for leave to proceed IFP for abuse of

discretion. Martinez v. Kristi Kleaners, Inc., 

, 1306 (11th Cir.

2004). A district court “may authorize the commencement . . . of any suit . . .

without prepayment of fees . . . 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.” 28 U.S.C. § 1915(a)(1). A district court has “wide discretion” to deny

a litigant leave to proceed IFP but may not act arbitrarily or deny such leave based

on erroneous grounds. 

.




as indigent, this Court took into consideration Albra’s allegation that he had $7,000 in equity in
the jointly-owned house.
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      When considering an IFP motion, “the only determination to be made by the

court is whether the statements in the affidavit satisfy the requirement of poverty.”

(alteration omitted). Absent serious misrepresentation, an affidavit of

poverty should be accepted and “need not show that the litigant is ‘absolutely

destitute’ to qualify for indigent status under § 1915.”
 Id. The affidavit 
“will be

held sufficient if it represents that the litigant, because of his poverty, is unable to

pay for the court fees and costs, and to support and provide necessities for himself

and his dependents.”
 Id.

      When the 
IFP affidavit demonstrates economic eligibility on its face, “the

court should first docket the case and then proceed to the question of whether the

asserted claim is frivolous.”
 

(alteration omitted). The district court

must also provide enough reasoning for its ruling on an IFP motion to permit

meaningful appellate review.
 

-08 (vacating and remanding the district

court’s unexplained denial of IFP status).

      Under the circumstances of this case, the district court’s denial -- without

explanation -- of Albra’s motions for leave to proceed IFP and for reconsideration

of that denial constituted an abuse of discretion. In his affidavit, Albra alleged

(under penalty of perjury) that he had no income, very little money or assets, and

was subject to some debt. In the light of these sworn allegations, Albra’s affidavit

was sufficient on its face to satisfy the poverty requirement of section 1915(a). By


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denying Albra’s IFP motion -- without explanation -- the district court abused its

discretion.

      Moreover, even if we look to the language in the district court’s later order

denying Albra’s motion for leave to proceed IFP on appeal as some hint of the

district court’s reason for earlier denying Albra IFP status in the district court --

that reasoning largely falls outside the scope of the pertinent inquiry. At this early

stage, the district court was limited to considering only whether the allegations in

Albra’s affidavit satisfied the poverty requirement: the reasons for Albra’s

unemployment are not pertinent to that inquiry. Accordingly, we vacate the denial

of Albra’s motion for leave to proceed IFP in the district court.

      We next address on our own accord the district court’s dismissal of Albra’s

civil action for failure to comply with the rules governing service of process. So

we must set straight a matter of basic jurisdiction. Once Albra filed timely his

notice of appeal, the district court lost jurisdiction to act further in this case, except

in aid of this appeal or on matters collateral to this appeal. See Mahone v. Ray,

326 F.3d 1176
, 1179 (11th Cir. 2003).

      The district court dismissed Albra’s civil action for failure to serve the

Board in compliance with Rule 4(m). But if Albra succeeded in demonstrating his

eligibility to proceed IFP -- a matter at issue in this appeal -- Albra would also be

entitled to have service made by a United States Marshal per his request. See 28


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U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and

perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3). The district court’s

ruling about Albra’s failure to effect proper service of process was neither in aid of

this appeal nor on a matter collateral to this appeal; the district court thus lacked

jurisdiction -- just had no power -- to dismiss Albra’s civil action for failure to

make service.

      We reverse the denial of Albra’s motion for leave to proceed IFP in the

district court. We also vacate for lack of jurisdiction the district court’s dismissal

without prejudice of Albra’s civil action. We remand for further proceedings

consistent with this opinion.

      REVERSED IN PART; VACATED AND REMANDED.




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