Stoller v. Bank of New York Mellon Trust Company et al

Filing 16

ORDER denying 12 Plaintiff's Motion for Leave to Appeal in forma pauperis. Signed by Judge G Murray Snow on 8/4/11.(TLJ)

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WO

SC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Bank of New York Mellon Trust)
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Company, et al.,
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Defendants.
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Christopher Stoller,

No. CV 11-01105-GMS-JRI
ORDER

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Plaintiff Christopher Stoller, who is confined in the Lake County Adult Corrections

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Facility, in Waukegan, Illinois, filed a pro se Complaint asserting fraud claims and violations

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of his constitutional rights under 42 U.S.C. § 1983 with a pro se motion to proceed in forma

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pauperis, which was not on this District’s court-approved form. (Doc. 1.) In an Order filed

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on July 25, 2011, this Court denied Plaintiff’s in forma pauperis motion with leave to file a

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new in forma pauperis application within 30 days using this District’s required form. (Doc.

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9.) The Clerk of Court mailed Plaintiff the court-approved form. (Id.) On August 3, 2011,

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Plaintiff filed a notice of interlocutory appeal concerning the denial of his in forma pauperis

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motion and a motion for leave to appeal in forma pauperis. Plaintiff’s motion will be denied.

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(Doc. 11, 12.)

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I.

Payment of Filing Fee

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When bringing an action, a prisoner must either pay the $350.00 filing fee in a lump

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sum or, if granted the privilege of proceeding in forma pauperis, pay the fee incrementally

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JDDL

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as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires

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an affidavit of indigence and a certified copy of the inmate’s trust account statement for the

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six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must

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submit statements from each institution where he was confined during the six-month period.

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Id. To assist prisoners in meeting these requirements, the Court requires use of a form

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application. LRCiv 3.4(a).

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If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an

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initial partial filing fee of 20% of either the average monthly deposits or the average monthly

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balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial

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partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The

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balance of the fee will be collected in monthly payments of 20% of the preceding month’s

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income credited to an inmate’s account, each time the amount in the account exceeds $10.00.

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28 U.S.C. § 1915(b)(2).

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II.

Plaintiff’s Motion to Appeal In Forma Pauperis

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appeal. Rule 24(a)(1) of the Federal Rules of Appellate Procedure requires a party who

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desires to proceed in forma pauperis on appeal to file a motion in the district court which

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includes an affidavit that: “(A) shows in the detail prescribed by Form 4 of the Appendix of

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Forms the party’s inability to pay or to give security for fees and costs; (B) claims an

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entitlement to redress; and (C) states the issues that the party intends to present on appeal.”

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Fed. R. App. P. 24(a)(1). The Court will deny Plaintiff’s motion to proceed in forma

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pauperis on appeal because he has not fully complied with Rule 24(a)(1) of the Federal Rules

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of Appellate Procedure and because the Court finds that the interlocutory appeal of a non-

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appealable order is an appeal that is not taken in good faith. Pursuant to Federal Rule of

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Appellate Procedure 24(a)(4), the Court will direct the Clerk of Court to immediately notify

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Plaintiff and the Ninth Circuit Court of Appeals of this denial.

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Plaintiff asks the Court to grant him in forma pauperis status on his interlocutory

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IT IS ORDERED that Plaintiff’s motion for leave to appeal in forma pauperis is
denied. (Doc. 12.)
DATED this 4th day of August, 2011.

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