IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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, 1244 (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Cir.1975)(superseded on other grounds by the Prison Litigation Reform Act as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. 1998)).

United States Court of Appeals

Fifth Circuit

F I L E D

January 8, 2013

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-40266

A district court’s denial 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 criteria. Watson v. Ault, 525

F.2d 886, 891 (5th Cir.1976). Poverty sufficient to qualify does not require

absolute destitution. Adkins v. E.I. du Pont de Nemours & Co., 335 U.S. 331,

339 (1948). 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 “is limited 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 issue on

appeal is sufficient. Id. 

The Bells submitted an affidavit in the district court, stating that they

were both unemployed, had no income, no money in a bank account, and had

numerous debts. The district court denied the IFP motion without providing any

reasons concerning their financial eligibility, apparently solely because the Bells

did not appear at the hearing on the IFP motion. 

On appeal, the Bells have filed a motion for leave to proceed IFP in this

court and a financial affidavit indicating that they are financially unable to

afford the costs of the appellate filing fee without undue hardship. They have

also shown that the appeal is non-frivolous and 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 denial of

the IFP motion without reasons was an abuse of discretion. See Carson v. Polley,

689 F.2d 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

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No. 12-40266

(5th Cir. 1981). As discussed above, the district court’s inquiry is to be based

solely on economic criteria. Watson, 525 F.2d at 891. 

Accordingly, the motion for leave to proceed IFP on appeal is

GRANTED, and the district court’s judgment is VACATED and the case is

REMANDED for further proceedings.

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