Smith v. Johnson et al
Filing
88
ORDER: If Smith wants to appeal, then he must either pay the $505 appellate filing fee or file an application to proceed in forma pauperis on appeal, No. 84 . If the Court grants Smith permission to proceed in forma pauperis, then the $505 appellate filing fee will be deducted from his prison trust account in monthly installments. And if Smith doesn't respond to the Clerk's appellate filing fee notice by 10/30/2017, then this monthly payment schedule for the remainder of the filing fee. The Court directs Davis to take Smith a copy of this Order and to visit with him in person about the proposed pro se appeal, the pending recommendation, and the representation issue. Davis must file a status report about these issues as soon as practicable, and no later than 10/30/2017. The Court extends the time for any party to object to the recommendation until 11/15/2017. Signed by Judge D. P. Marshall Jr. on 10/12/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JAMES EDWARD SMITH
ADC #103093
v.
PLAINTIFF
No. 5:12-cv-409-DPM-PSH
DEFENDANT
T. DOBBS, Varner Unit, ADC
ORDER
1. Smith has filed pro se papers appealing this Court's
25 August 2017 Order. Ng 81, 83 & 86. While the United States Court of
Appeals for the Eighth Circuit will decide its jurisdiction, Smith's appeal
to that Court appears premature: this Court hasn't entered a final,
appealable Order; and there's no basis for certifying an interlocutory
appeal. 28 U.S.C. §§ 1291 & 1292; Dieser v. Continental Casualty Company,
440 F.3d 920, 923-24 (8th Cir. 2006).
Nonetheless, if Smith wants to appeal, then he must either
pay the $505 appellate filing fee or file an application to proceed in
forma pauperis on appeal.
Ng 84.
If the Court grants Smith
permission to proceed in forma pauperis, then the $505 appellate filing
fee will be deducted from his prison trust account in monthly
installments. 28 U.S.C. § 1915(b)(1). And if Smith doesn't respond
to the Clerk's appellate filing fee notice by 30 October 2017, then this
monthly payment schedule for the remainder of the filing fee. NQ 84
at 2.
2. The Court appointed a lawyer at Smith's request. NQ 48 & 49.
But Smith continues to file pro se papers. He can't have it both ways:
Smith must either let Davis exercise his best legal judgment, or Smith
must represent himself. The Court would benefit from having Davis
continue to represent Smith- especially if Smith's motion for default
judgment is granted, and this case proceeds to a damages trial, as
Magistrate Judge Harris recommends. NQ 87. But whether to represent
himself is ultimately Smith's decision. While there's no constitutional
right to self-representation in civil cases, there is a statutory right to
represent oneself. 28 U.S.C. § 1654; Andrews v. Bechtel Power Corporation,
780 F.2d 124, 137 (1st Cir. 1985).
The Court directs Davis to take Smith a copy of this Order and to
visit with him in person about the proposed prose appeal, the pending
recommendation, and the representation issue. Davis must file a status
report about these issues as soon as practicable, and no later than 30
October 2017. Counsel's motion to withdraw, NQ 82, will abide that
report.
3. In the circumstances, the Court extends the time for any party to
object to the recommendation until 15 November 2017.
-2-
So Ordered.
D.P. MarShail;
United States District Judge
-3-
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