Larry Cooper, Petitioner-appellant, v. John W. Gill, U.S. Attorney; John E. Eldridge, Courtappointed Counsel; Judge Taylor, U.S. Districtcourt, Respondents-appellees, 947 F.2d 944 (6th Cir. 1991)

Rather than filing the supplemental pleading as part of the earlier filed case, the district court docketed the claims as a separate civil action, Case No. 91-128. The district court noted that the allegations were repetitive of the earlier motion to vacate and entered an order of summary dismissal. The district court also rejected claims against certain respondents who are residents of Alabama on grounds of lack of jurisdiction. Additionally, the district court noted that petitioner did not pay the filing fee and did not request in forma pauperis status.

On appeal, Cooper maintains that the present matter is the same case as his motion to vacate, No. 90-625. He names additional respondents (defendants) who allegedly have lied and misled the court by their assertions that the matters are separate. He renews his allegations that he has been denied constitutional rights.

Upon review, we conclude that the district court correctly dismissed the case for failure to pay the filing fees. Because Cooper's claims were not accompanied by an application for pauper status and the filing fee was never paid, dismissal was proper. Nevertheless, dismissal for failure to pay the filing fee should have been without prejudice because the case was not "commenced." See Fed. R. Civ. P. 3.

Finally, it is noted that issues presented for the first time on appeal are not subject to review. See White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990). Cooper's arguments and claims concerning additional "defendants," therefore, are not before the court.

Accordingly, the motion to proceed in forma pauperis is granted for the limited purpose of permitting review in this case; and the district court's order of dismissal, as modified to be without prejudice, is hereby affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.