### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40266 Summary Calendar

SHEILA BELL, Plaintiff-Appellant

v. CHILDREN’S PROTECTIVE SERVICES; JACK LAWRENCE, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:11-MC-14

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Sheila Bell and Christopher Bell appeal the district court’s order denying their motion for leave to proceed in forma pauperis (IFP) in the district court in their 42 U.S.C. § 1983 civil action challenging the State’s prior removal of their children from their custody. The denial of an IFP motion is an appealable decision. Flowers v. Turbine Support Div. , 507 F.2d 1242, 12 4 4 (5th Cir.1975)(superseded on other grounds by the Prison Litigation Reform Act as stated in Thompson v. Drewy , 138 F.3d 984, 986 (5th Cir. 199 8)). U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary8, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-40266 Document: 00512104737 Page: 1 Date Filed: 01/08/2013No. 12-40266

A district court’s deni al of IFP status is reviewed for an abuse of discretion. See Flowers , 507 F.2d at 1244. Whether a party may proceed IFP in the district court is based solely upon economic c ri t eria. Watson v. Ault , 525 F.2d 886, 891 (5th Cir.1976). Poverty sufficient t o qualify does not require absolute desti t u t i o n . Adkins v. E.I. du Pont de Nemours & Co. , 335 U.S. 331, 339 ( 1 948). The central question is whether the movant can afford the costs without undue hardship or deprivation of the necessities of life. Id. at 339-40. A litigant seeking authorization to proceed IFP on appeal must show that he is a pauper and that the appeal is taken in good faith. Howard v. King, 707 F.2d 215, 219–20 (5th Cir. 1983); Fed. R. App. P. 24(a). This court’s inquiry into

a litigant’s good faith “i s l i m ited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard , 707 F.2d at 220 (internal quotation marks and citation omitted). Any non-frivolous issu e o n appeal is sufficient. Id

. The Bells s ub m i tted an affidavit in the district court, stating that they

were both unemployed, had no income, no mo n e y i n a bank account, and had

numerous debts. The district court denied the IFP motion without providing any
reasons concerning their financial eligibility, apparently sol ely b e c ause the Bells did not appear at the hearing on the IFP motion. On appeal, the Bells have file d a m o t ion for leave to proceed IFP in this court and a financial affidavit indicating that th e y ar e f inancially unable to afford the costs of th e a p p ellate filing fee without undue hardship. They have also shown that the appeal is non-frivolous an d involves legal points arguable

on the merits. Given that the Bells’ affidavit indicated that they could not afford the costs of the filing fee without undue hardship, the district court’s de nial of the IFP motion without reasons was an abuse of discretion. See Carson v. Polley , 6 8 9 F

. 2 d 562, 586 (5th Cir. 1982); Flowers , 507 F.2d at 1244; Courtney v. Havard , 53 F.3d 1281, 1281 (5th Cir. 1995); Green v. Estelle , 649 F.2d 298, 302

2 Case: 12-40266 Document: 00512104737 Page: 2 Date Filed: 01/08/2013No. 12-40266

(5th Cir. 1981). As discus s e d above, the district court’s inquiry is to be based solely on economic criteria. Watson , 525 F.2d at 891.

Accordingly, the motion f o r leave to proceed IFP on appeal is GRANTED, and the di s t ri c t c ourt’s judgment is VACATED and the case is REMANDED for further proceedings.

3 Case: 12-40266 Document: 00512104737 Page: 3 Date Filed: 01/08/2013