USCA11 Case: 19-13104     Date Filed: 10/19/2020    Page: 1 of 7



                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 19-13104
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:18-cv-01082-ELR



JEFFREY BOURASSA,

                                                              Plaintiff-Appellant,

                                    versus

GREGORY DOZIER, Commissioner,
HOMER BRYSON, former GDC Commissioner,
TIMOTHY WARD, Assistant Commissioner,
JACK KOON, Facilities Director,
STEVE UPTON, Deputy Facilities Director, et al.,

                                                            Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                              (October 19, 2020)
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Before BRANCH, LAGOA, and BLACK, Circuit Judges.

PER CURIAM:

      Jeffrey Bourassa, a state prisoner proceeding pro se, appeals the district

court’s dismissal without prejudice of his civil rights complaint and denial of his

motion to vacate the dismissal order. Bourassa argues the district court erred in:

(1) dismissing his complaint based on his failure to provide a copy of his inmate

account statements; (2) overlooking, in denying his motion to vacate, a letter he

sent requesting a copy of an account statement; (3) limiting any amended

complaint to ten pages; and (4) denying as moot his second motion to review his

request to proceed in forma pauperis (IFP). After review, we affirm.

                                  I. DISCUSSION

A. Dismissal of Complaint and Denial of Motion to Vacate

      A prisoner who seeks to proceed IFP must comply with the requirements of

28 U.S.C. § 1915(a). The prisoner is required to submit “an affidavit that includes

a statement of all assets such prisoner possesses that the person is unable to pay

such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). The affidavit shall

also state “the nature of the action, defense or appeal and affiant’s belief that the

person is entitled to redress.”

must “submit a

certified copy of the trust fund account statement (or institutional equivalent) for

the prisoner for the 6-month period immediately preceding the filing of the


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complaint or notice of appeal, obtained from the appropriate official of each prison

at which the prisoner is or was confined.”

considering an applicant’s affidavit, “the only determination to be

made by the court is whether the statements in the affidavit satisfy the requirement

of poverty.” Martinez v. Kristi Kleaners, Inc., 

, 1307 (11th Cir.

2004) (alteration, ellipsis, and quotation marks 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.”

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.”

IFP affidavits containing inconsistent information,

none of which was accompanied by an inmate account statement. Based on his

argument prison officials refused to provide him with copies of the account

statements, the magistrate judge asked Bourassa to substantiate his claims by

providing details about the requests he had made. Bourassa was unable to do so.

Bourassa explained he had been transferred among several institutions but was

primarily confined to Hays State Prison in the six-month period prior to filing the

instant complaint. However, he failed to provide the specific dates of his requests

for account statements, copies of the requests or their denials, or the names of


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officials to whom requests were made. The magistrate judge therefore concluded

the court could not directly inquire, with Bourassa’s institutions, into Bourassa’s

inability to obtain his account statements, and moreover, that his “incomplete,

inconsistent, and evasive filings” demonstrated bad faith. The district court

agreed.

      The district court did not abuse its discretion in dismissing Bourassa’s

complaint on this basis. See 

(providing the denial

of a motion for leave to proceed IFP is reviewed for an abuse of discretion and

noting district courts must not act arbitrarily or deny the motion on erroneous

grounds). We have held a prisoner’s complaint should not be dismissed where his

“failure to pay his filing fee may be caused by circumstances beyond his control,”

and that a district court must take reasonable steps, including direct communication

with a custodial institution, to determine whether a prisoner has complied with an

order directing the payment of fees. See Wilson v. Sargent, 

, 1321-

22 (11th Cir. 2002) (vacating dismissal for failure to pay fees where the district

court did not inquire whether a prisoner proceeding IFP had requested that prison

officials withdraw partial filing fee). Nevertheless, the district court’s dismissal

was not an abuse of discretion because Bourassa was unable to provide any

documentation to corroborate his claims prison officials refused to provide account

statements, despite having ample time and opportunity to request account


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statements during the litigation. Moreover, the district court found Bourassa’s

inconsistent affidavits demonstrated bad faith.

       Bourassa advances several arguments on appeal, contending the district

court ignored evidence—namely his own statements made under penalty of

perjury—and never specifically directed him to file another request for an inmate

account statement. These arguments are unavailing, as the district court did

consider Bourassa’s personal statements but asked for further documentation, in

place of the account statements Bourassa could not provide, and the requirements

for prisoners proceeding IFP are set out by statute and were made known to

Bourassa early in the case. We further reject Bourassa’s contention that the

framework for analyzing the exhaustion of administrative remedies under 42

U.S.C. § 1997e(a) applies here. 1

       With respect to the denial of his motion to vacate, Bourassa argues the

district court failed to consider a letter he sent to Georgia Diagnostic and

Classification Prison in May 2019 requesting a copy of his account statement.

Nevertheless, the court did not abuse its discretion in denying Bourassa’s motion to

vacate for several reasons. See Conn. State Dental Ass’n v. Anthem Health Plans,



       1
         In dismissing the complaint without prejudice, the district court indicated Bourassa was
not precluded from filing a new complaint, but any such complaint must use the court’s standard
form and not exceed ten pages of attachments. Bourassa challenges this page limitation, but we
need not reach this issue, as Bourassa has waived any right to amend by appealing the dismissal
order. See Garfield v. NDC Health Corp., 

, 1260-61 (11th Cir. 2006).
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Inc., 

, 1343 (11th Cir. 2009) (11th Cir. 1993) (providing the denial

of a motion to vacate or amend a judgment is reviewed for an abuse of discretion).

First, the letter was written after the magistrate judge issued the final report and

recommendation (R&R) on which dismissal was based, at which point Bourassa’s

action had already been pending for over a year without the payment of fees.

Second, Bourassa incorrectly stated the letter was attached to his motion to vacate,

when it was in fact attached to his objections to the R&R, so the district court’s

conclusion Bourassa had not attached a copy of the letter to his motion was not

inaccurate. To the extent the court did not consider the letter in conjunction with

Bourassa’s objections to the R&R, it was within the court’s discretion to decline to

do so. See Williams v. McNeil, 

, 1292 (11th Cir. 2009) (holding a

district court has the discretion to decline to consider arguments that were not

presented to the magistrate judge). Finally, a single request for an account

statement made more than a year after Bourassa filed the complaint and after the

magistrate judge recommended dismissal does not undermine the court’s finding

Bourassa acted in bad faith.

B. Denial of Motion as Moot

      In conjunction with its dismissal order, the district court also denied as moot

Bourassa’s second motion to review his request to proceed IFP, in which Bourassa

asked the court to review his IFP application without an account statement or order


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prison officials to provide an account statement. Bourassa argues the court should

have reached the merits of the motion prior to dismissal, but the district court did

not err in denying the motion as moot. See United States v. Al-Arian, 

, 1189 (11th Cir. 2008) (providing mootness is a question of law we review de

novo). Based on the R&R, and after considering Bourassa’s objections, the court

dismissed Bourassa’s complaint without prejudice based on his failure to submit

the required account statements and on a finding of bad faith. At that point, there

was no longer a live case or controversy with respect to which the court could

grant meaningful relief, and no reason to consider whether IFP status might be

analyzed without an account statement or whether Bourassa’s institutions should

be contacted directly. The motion was therefore moot. See

is

moot when events occur that deprive a court of the ability to grant meaningful

relief).

                                 II. CONCLUSION

       For the reasons above, the district court did not abuse its discretion in

dismissing Bourassa’s complaint or denying Bourassa’s motion to vacate the

dismissal order, and it did not err in denying as moot his second motion to review

his request to proceed IFP. Accordingly, we affirm.

       AFFIRMED.




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