Gary Teague, Plaintiff-appellant, v. Sam Dickinson, Defendant-appellee, 835 F.2d 875 (4th Cir. 1987)

Gary Teague filed a civil rights action pursuant to 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis. After determining that $27 represented fifteen percent of deposits made to Teague's inmate account over the preceding six months, the court granted leave to proceed in forma pauperis conditioned on payment of the partial fee. Teague responded by renewing his motion to proceed in forma pauperis and requesting, in the alternative that he be allowed to pay one filing fee in the two cases he had pending before the court. The magistrate concluded that Teague was able to pay the partial filing fee in each case and give him until July 31, 1987 to pay the fees. The magistrate noted that the failure to pay the partial filing fee would result in denial of the motion to proceed in forma pauperis and dismissal of his action. On August 17, 1987, Teague filed this appeal.

We find that there has been no final, appealable order in this case; therefore, this Court lacks jurisdiction to review the appeal. See 28 U.S.C. § 1291.

Teague was issued a conditional order which provided him with the option of proceeding in forma pauperis upon payment of a partial fee. The order did not deny Teague leave to proceed in forma pauperis but warned him that this status could be denied if the partial fee were not paid. The order clearly contemplated entry of another order regarding in forma pauperis status should Teague fail to pay the partial fee.

Until such an order has been entered, the district court's action on Teague's request for in forma pauperis status is not final or appealable. Cf. Navarro v. District Director of United States Immigration and Naturalization Service, 539 F.2d 611 (7th Cir. 1976) (order stating that summary judgment will be granted on certain conditions not final until district court finds conditions and enters judgment). We therefore lack jurisdiction to consider this appeal.

Leave to proceed in forma pauperis is denied, and the appeal is dismissed for lack of jurisdiction. As the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

DISMISSED