UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-10888

____________

KIRK DOUGLAS THOMPSON,

Plaintiff - Appellant,

versus

RONALD DREWRY, Warden; TIM MORGAN, Warden;

KELVIN SCOTT, Warden; CRAIG RAINES, Warden; B

PREWIT, Unit Health Administrator; HERMAN

SHAFFER, Doctor; JEAN HUBE LOUIS, Doctor; JOE

HOE BLOE, Doctor; BOUNDS, Nurse; JOYCE ROSS;

CO III; EDWIN GONZALEZ, CO III; MICHAEL

EULENFELD, Lieutenant; LARRY ANDERSON,

Lieutenant; NOBLES, Doctor; DAVIS, Doctor;

DAVID W TEMPLETON, CO III; DARRELL PORTER,

Lieutenant; ERIC HAMILTON, Lieutenant; ROBERT

RIVAS, JR, Sergeant; JAMES MCGONAGILL, CO III;

THOMAS SULLIVAN, Sergeant; LONA CHEAIRS,

Mailroom Supervisor; JOYCE BYARS, Doctor,

Psychiatrist; CHRISTOPHER OWENS, CO III;

KENNETH WARREN, Sergeant; EISENHOWER LEWIS, CO

III; ROBERT TALASEK, CO III; CARRY HILLIARD,

Sergeant; SHAWN HARRIS, CO III; HAROLD

ROBINSON, CO III; RONALD WILLIAMS, Lieutenant;

EDDIE WHEELER, Major; JAIME QUINTANILLA,

Captain; BRIAN CARSEN, Captain; WILLIAM KELLY,

Captain; LAMAR EARNEST, Captain; THOMAS JONES,

Lieutenant,

Defendants - Appellees.

Appeal from the United States District Court

For the Northern District of Texas

April 10, 1998

Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:
 

1 The PLRA authorizes the district court to “assess and,

when funds exist, collect, as a partial payment of any court fees

required by law, an initial partial filing fee of 20 percent of the

greater of-- A) the average monthly deposits to the prisoner's

account; or (B) the average monthly balance in the prisoner's

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

the complaint or notice of appeal.” 28 U.S.C. § 1915(b)(1). 

-2-

Kirk Douglas Thompson, a Texas inmate, filed a civil rights

action under 42 U.S.C. § 1983 against more than 30 officials at his

prison. Thompson moved to proceed in forma pauperis (“IFP”),

attesting that he had no income or assets. Pursuant to 28 U.S.C.

§ 1915(b)(2), as amended by the Prison Litigation Reform Act

(“PLRA”), the district court ordered Thompson to pay an initial

partial filing fee of $1.80. Thompson did not pay this partial

filing fee. In a second order, the district court determined that

Thompson “ha[d] shown good cause for failing” to pay the partial

filing fee and stated that it would require Thompson to pay the

full filing fee in monthly installments. The court directed the

“agency having custody of [Thompson]” to forward to the court the

$1.80 initial partial filing fee “when funds exist in [Thompson’s]

inmate trust account.”1 Thompson’s timely appeal followed.

On appeal, we directed the parties to address the following

issue: “Whether the order from which the appeal is taken,

requiring the payment of the full filing fee and an initial partial

filing fee, is appealable prior to the entry of a final judgment in

this civil rights case.” This is a question of first impression in

our Court. Prior to the enactment of the PLRA, an order denying a

motion to proceed IFP under 28 U.S.C. § 1915 was an appealable
-3-

final order. See Flowers v. Turbine Support Div., 507 F.2d 1242,

1244 (5th Cir. 1975). The district court’s order in the present

case, however, is not appealable as a final judgment because it did

not end the litigation on the merits and will not “close the door

of the courthouse to the true pauper, forcing him to forfeit his

day in court.” Id. The district court noted that no prisoner,

regardless of his poverty, will be barred from pursuing a civil

action. The PLRA explicitly states that “[i]n no event shall a

prisoner be prohibited from bringing a civil action or appealing a

civil or criminal judgment for the reason that the prisoner has no

assets and no means by which to pay the initial partial filing

fee.” 28 U.S.C. § 1915(b)(4).

Moreover, the district court’s order does not fall within the

statutory list of interlocutory orders that are appealable. See 28

U.S.C. § 1292(a). Similarly, the court’s order does not fall

within the collateral-order doctrine, the jurisprudential exception

to the final-order rule. The collateral-order doctrine allows

appellate review of nonfinal orders if certain conditions are met:

1) the order must finally dispose of a matter so that the

district court’s decision may not be characterizable as

tentative, informal or incomplete; 2) the question

presented must be serious and unsettled; 3) the order

must be separable from, and collateral to, rights

asserted in the principal suit; and 4) there should

generally be a risk of important and probably irreparable

loss if an immediate appeal is not heard.

EEOC v. Kerrville Bus Co., 925 F.2d 129, 134 (5th Cir. 1991).

Here, under the PLRA, Thompson cannot be barred from bringing

suit because of his poverty; consequently, there is no “risk of

important and [] irreparable loss.” Thus, we hold that the
-4-

district court’s order directing that Thompson’s funds be forwarded

to pay the initial partial filing fee only when he has sufficient

funds available is not an appealable collateral order.

Accordingly, his appeal is DISMISSED for lack of jurisdiction. In

addition, Thompson’s motion to prosecute without delay is DENIED.