Robert Martin, Plaintiff-appellant, v. Hall, Captain; Joe Riale; Mr. Steele, Psychologist,defendants-appellees, 72 F.3d 130 (6th Cir. 1995)

ORDER

Robert Martin, an Ohio state prisoner, requests the appointment of counsel on appeal from a district court judgment denying his application to proceed in forma pauperis in a civil rights action. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Martin tendered a complaint against three prison employees seeking monetary, injunctive, and declaratory relief, and alleging a violation of his civil rights. The complaint was accompanied by an application to proceed in forma pauperis. The matter was referred to a magistrate judge, who recommended that the application be denied because Martin had maintained an average account balance of over $200 for the past six months, and could afford to pay the filing fee in full. Over Martin's objections, the district court adopted the reasoning of the magistrate judge and denied the application for pauper status. On appeal, Martin argues that he is being denied access to the court by being forced to choose between filing his suit and using his funds to purchase hygiene items and food from the prison commissary. He contends that he cannot eat the food served in the prison because it is tainted.

Upon review, we conclude that the district court did not abuse its discretion in denying the application to proceed in forma pauperis. See Phipps v. King, 866 F.2d 824, 825 (6th Cir. 1988). In spite of spending without restriction on commissary items for the six months preceding the tendering of the complaint in this case, Martin had managed to maintain an excess balance of funds more than sufficient to pay the filing fee for his complaint. Accordingly, the request for counsel is denied and the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.