Dillard E. Kelley, Sr., Plaintiff-appellant, v. Federal Bureau of Prisons, O.c. Jenkins, Warden; E.jackson, Case Manager; William Lingenfelser, Unitmanager, Defendants-appellees, 21 F.3d 1121 (10th Cir. 1994)

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Kelley, a federal inmate and pro se litigant, appeals the adverse grant of summary judgment. Mr. Kelley also moves to proceed on appeal without prepayment of costs and fees. 28 U.S.C.A.1915; Fed. R. App. P. 24. We deny his motion to proceed in forma pauperis and affirm the judgment of the district court.

Mr. Kelley was convicted of a continuing criminal enterprise and sentenced to a term of years and a fine of one million dollars. His civil rights complaint challenged the authority of prison officials to limit his prison privileges when he was placed on refusal status under the Inmate Financial Responsibility Program. 28 C.F.R. 545.10 et seq. Mr. Kelley was placed on refusal status when he declared no intention of paying the court ordered fine. During the six month period he sought to alleviate this limiting status, over $4,450 was deposited into his inmate account while he withdrew over $3,900. Mr. Kelley has since been transferred off refusal status.

Mr. Kelley was granted leave to proceed before the district court without prepayment of costs but denied further leave to proceed on appeal in forma pauperis. After an exhaustive review of Mr. Kelley's claim that prison officials used the Inmate Financial Responsibility Program to extort payment of fines, the court granted defendants' motion for summary judgment. Mr. Kelley appeals in forma pauperis despite the district court's certification that the appeal is not taken in good faith. See Fed. R. App. P. 24(a).

To prevail, Mr. Kelley must show his financial inability to pay the required fees and a reasoned, nonfrivolous argument on the law with facts to support the issues raised on appeal. 28 U.S.C.1915(a); Coppedge v. United States, 369 U.S. 438, 445-46 (1962). Mr. Kelley, without more than conclusory allegations, essentially argues the trial judge failed to act neutrally and considered matters outside the scope of the complaint. We agree with the district court, "the appeal is legally frivolous and is not taken in good faith."

Accordingly, we DENY his motion to proceed in forma pauperis, waive the fees, and AFFIRM the district court.