JACK VIGUE v. LT. JOHN UNDERWOOD
Annotate this Case
Download PDF
RENDERED:
FEBRUARY 27, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000619-MR
JACK VIGUE
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 02-CI-00295
v.
LT. JOHN UNDERWOOD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND McANULTY , JUDGES.
KNOPF, JUDGE.
Jack Vigue appeals pro se from an order of the
Morgan Circuit Court dismissing his “Petition for Declaration of
Rights” and his “Motion to Proceed on Appeal In Forma Pauperis”
for failing to comply with prior orders setting filing fees of
$25.00 and $5.00 respectively.
Vigue is currently incarcerated at the Eastern
Kentucky Correctional Complex.
In September 2002, following a
prison disciplinary hearing, he was found guilty of fraudulently
using credit cards to pay for magazine subscriptions.
Vigue was
ordered to serve forty-five days in segregation and to pay
$335.55 in restitution.
On November 27, 2002, he filed a
petition for declaratory relief1 in the Morgan Circuit Court,
alleging that his conviction violated the Interstate Corrections
Compact,2 and seeking monetary damages for the time he had served
in segregation as well as an expungement of the conviction from
his file.
Vigue included with the petition a motion to proceed
in forma pauperis and an affidavit of indigency.
Also attached
was a certification of funds in his institutional account,
showing that during the preceding six months, a total of $620.87
had been deposited into the account.
The ending balance in
October 2002, however, stood at $.12.3
1
The petition was made pursuant to KRS 418.040.
2
See KRS 196.610.
3
These documents were submitted in accordance with KRS
454.410(1), which states:
When an inmate commences, intervenes, or
becomes a party to an action or an appeal of
a judgment in a civil action or proceeding
without paying the fees and court costs
imposed by law, the inmate shall prepare an
affidavit with a certified copy of the
inmate’s prison account statement showing
the total deposits for the six (6) months
immediately preceding the inmate’s
commencement, intervention, or joining of
the action, or an appeal of a judgment in a
civil action or proceeding, if available.
-2-
On November 27, 2002, the circuit court entered an
order stating that Vigue was to pay a filing fee of $25.00
within forty-five days or his petition would be dismissed.
On
December 3, 2002, Vigue responded with a motion to reconsider,
and an affidavit stating that he was unable to pay the fee
because “[p]etitioner paid out $170.16 Restitution in August
2002, and, now, has another $335.55 Restitution to pay, which is
part of this action.”
The motion to reconsider was denied.
Vigue then filed a notice of appeal of the court’s denial of his
motion to proceed in forma pauperis.
He attached an updated
certification of the funds in his account, which showed that no
deposits had been made in November 2002.
The balance in the
account remained at $.12 for that month.
Deposits totaling
$30.00 had been made in the month of December.
On January 27, 2003, the circuit court ordered Vigue
to pay a fee of $5.00 to file the notice of appeal.
Vigue did
not respond, and on February 14, 2003, the action was dismissed.
On March 21, 2003, Vigue filed another notice of
appeal.
The circuit court granted him leave to proceed with his
appeal in forma pauperis.
The sole issue on appeal is whether the circuit court
erred in dismissing Vigue’s action for failure to pay the filing
fees of $25.00 and $5.00.
-3-
The procedure for setting inmates’ filing fees is
governed by KRS 454.410(2), which states in relevant part:
When an inmate commences, intervenes, or
joins an action or an appeal of a judgment
in a civil action or proceeding, the inmate
shall pay at least partial court fees and
costs. At a minimum, the inmate shall pay a
five dollar ($5) filing fee unless the court
determines the inmate is unable to pay a fee
and waives all fees and costs. If the
inmate has the ability to pay a higher
amount, the court shall order the inmate to
pay the higher amount. However, the fees
and costs imposed shall not exceed the full
amount otherwise imposed by law.
The record shows that deposits exceeding the amounts
of the filing fees set by the circuit court were made regularly
into Vigue’s account.
Deposits of $54.67, $246.20, $35.00 and
$285.00 were made in June, July, and August 2002 respectively,
and a further deposit of $30.00 was made in December 2002.
Admittedly, Vigue’s account balance stood at $.12 in October and
November 2002, but the forty-five day time limit set by the
court in its order of November 27, 2002, would have allowed
Vigue to pay the filing fee in December when his account balance
stood at $30.12.
“The decision to grant or deny a motion to proceed in
forma pauperis is within the discretion of the trial court and
we may not reverse that decision in the absence of clear error.
-4-
CR 52.01; Bush by Bush v. O’Daniel, Ky., 700 S.W.2d 402 (1985).”4
Based on the evidence in the record regarding the amounts and
frequency of the deposits made into Vigue’s account, the circuit
court did not abuse its discretion in dismissing the action for
failure to pay the filing fees.
For the foregoing reasons, the order of the Morgan
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE:
Jack Vigue, pro se
West Liberty, Kentucky
4
Palmer v. O’Dea, Ky. App., 8 S.W.3d 884, 885 (1999).
-5-
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.
