JAMES NICK HARRISON v. DOUG SAPP; JUDITH MORRIS; MICHAEL J. O'DEA; BRAD PERKINS; DAVID GILPIN; DAVID VANCE; RICHARD FULKS; STEVE CONWAY; BARBARA CONLEY; J. HAVENS; JUDD McCOWAN, and KEITH ELAM
Annotate this Case
Download PDF
RENDERED: November 13, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001398-MR
JAMES NICK HARRISON
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 97-CI-00007
v.
DOUG SAPP; JUDITH MORRIS;
MICHAEL J. O'DEA;
BRAD PERKINS; DAVID GILPIN;
DAVID VANCE; RICHARD FULKS;
STEVE CONWAY; BARBARA CONLEY;
J. HAVENS; JUDD McCOWAN, and
KEITH ELAM
APPELLEES
OPINION
VACATING AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOX, AND MILLER, JUDGES.
MILLER, JUDGE: James Nick Harrison (Harrison) brings this pro se
appeal from a Morgan Circuit Court order dismissing his civil
action for failing to pay a filing fee.
We vacate and remand
with directions.
On January 15, 1997, Harrison filed a civil action
against various corrections officials.
In compliance with
Kentucky Revised Statute (KRS) 454.410, Harrison filed a
certified account balance statement and an affidavit of indigence
stating that his inmate account was frozen by the Sixth Circuit
Court of Appeals.
On January, 16, the trial court issued an
order requiring Harrison to pay a $5.00 filing fee within 45 days
or have the action dismissed.
Harrison then filed an affidavit
for waiver of fees and costs, due to special circumstances, and a
document marked “insufficient funds.”
On March 3, 1997, Harrison
filed a motion requesting a ruling on his motion.
Finally, on
March 20, 1997, the trial court dismissed Harrison's action for
failing to pay the $5.00 filing fee.
This appeal followed.
Harrison first argues that KRS 454.410 violates
separation of powers and is overbroad and vague.
Both of his
arguments are without merit.
According to Harrison, KRS 454.410 violates the
separation of powers doctrine because it allows a defendant to
become a party to an appeal before it has been served with the
complaint.
The statute permits courts to dismiss inmate actions
if a filing fee is not paid.
There is no provision, however,
that addresses appellate procedure.
It was Harrison himself who
identified the parties on his notice of appeal.
The separation
of powers doctrine deals with the problem of one branch of
government encroaching upon the powers of another.
This court
fails to see how the procedure of including parties, who have not
yet been served, would violate the separation of powers doctrine.
Harrison contends that KRS 454.410 is overbroad and
vague because it fails to provide the court with sufficient
-2-
guidance on the assessment of fees.
The cases cited by Harrison
concern overbreadth and vagueness of a criminal statute and are
not applicable to a statute such as KRS 454.410.
Furthermore, the statute does provide sufficient
guidance to the trial court.
Initially, an inmate who commences
an action must file a certified copy of his prison account
statement for the six months preceding commencement of the
action.
KRS 454.410(1).
Next, the court determines the amount
of fees and costs due based upon the inmate's ability to pay.
KRS 454.410(2).
The fees and costs may range from a minimum of
$5.00 up to the full amount otherwise imposed by law.
Id.
An inmate may move for a waiver of all court fees and
costs by filing an affidavit of “special circumstances”
explaining his inability to pay.
KRS 454.410(4).
If the court
denies the motion to waive all fees and costs, it must notify the
inmate in writing and give him at least 45 days in which to pay.
Id.
An inmate's failure to pay the fees and costs, or to have
them waived, will result in dismissal of the case.
Id.
The discretion given to the trial court is no more than
that given courts for determining in forma pauperis in other
cases.
See, e.g., Alexander v. Carson Adult High School, 9 F.3d
1448 (9th Cir. 1993) (reviewing application of in forma pauperis
for abuse of discretion).
Thus, KRS 454.410 is not invalid for
overbreadth or vagueness.
Harrison's final argument is that the trial court
abused its discretion under KRS 454.410 in dismissing his case
for failing to pay the filing fee.
-3-
The record indicates that
Harrison fully complied with the requirements of KRS 454.410 by
filing an inmate account statement and an affidavit of special
circumstances.
If true, Harrison's special circumstance of
having his account frozen would seem sufficient to justify waiver
of the fee under KRS 454.410(4).
It appears, however, that the
trial court did not believe Harrison's account was truly frozen
and unavailable.
The trial court abused its discretion by dismissing
Harrison's case without providing him an opportunity to present
evidence in support of his special circumstance.
KRS 454.410(3)
requires only an affidavit in support of a motion to waive fees
and does not address the use of supporting evidence.
In the case
sub judice, the court, according to the March 20 order, refused
to waive the fee and dismissed the action because Harrison failed
to offer proof, other than the insufficient funds document, that
his account was, indeed, frozen.
Thus, the first time Harrison
was notified that his compliance with KRS 454.410(3) was not
sufficient was in the court's order to dismiss.
On remand, the trial court should give Harrison
sufficient opportunity to provide evidence in support of his
claim that his account is frozen.
For the foregoing reasons, the order of the Morgan
Circuit Court dismissing Harrison's civil action is vacated, and
this cause is remanded for proceedings consistent with this
opinion.
KNOX, JUDGE, CONCURS.
-4-
BUCKINGHAM, JUDGE, CONCURS IN PART AND DISSENTS IN PART
BY SEPARATE OPINION.
BUCKINGHAM, JUDGE, CONCURRING IN PART AND DISSENTING IN PART.
I
disagree with the majority opinion to the extent that it holds
that the trial court abused its discretion by dismissing
Harrison’s case without providing him an opportunity to present
evidence in support of his special circumstances.
In my opinion,
the trial court was within its discretion to deny the motion as
it was based on a self-serving affidavit which was without
documentation to support Harrison’s statement that his inmate
account had been frozen.
However, it appears to me that the trial court did not
follow the statutory procedure set forth in KRS 454.410(4).
As I
read that statute, the trial court should have notified Harrison
that the case would be dismissed if the $5.00 filing was not paid
within forty-five days after the date of the order denying the
motion to waive the fee.1
Instead, the trial court dismissed the
action without giving Harrison time to submit the fee.
I would
reverse the order of the trial court and direct that Harrison be
given forty-five days in which to pay the fee or else his
complaint would be dismissed.
1
The trial court apparently entered an earlier order
directing that a $5.00 filing fee be paid within forty-five days
of that order. However, the statute requires that the inmate be
given forty-five days from the date of the order denying his
motion for waiver of fees in which to pay the fee. This was not
done.
-5-
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEES
James Nick Harrison, Pro Se
Kentucky State Penitentiary
Eddyville, KY
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
