Martz v. Wood et al

Filing 49

ORDER Calculating Appellate Filing Fees re 44 Notice of Appeal filed by Hollis Devin Martz. Signed by Honorable Susan O. Hickey on October 22, 2019. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
HOLLIS DEVIN MARTZ

v.

PLAINTIFF

Civil No. 4:18-cv-4040

SHERIFF BENNY SIMMONS

DEFENDANT
ORDER

On March 27, 2018, Plaintiff Hollis Devin Martz filed this action pro se pursuant to 42
U.S.C. § 1983. On July 30, 2019, the Court granted Defendant Benny Simmons’ motion for
summary judgment. That same day, the Court entered a judgment dismissing this case with
prejudice. On August 13, 2019, Plaintiff filed a notice of appeal. On September 26, 2019, the
United States Court of Appeals for the Eighth Circuit remanded the case to this Court for the
limited purpose of calculating and collecting Plaintiff’s appellate filing fees.
The Court previously granted Plaintiff in forma pauperis status in an order filed March 27,
2018. It is appropriate to allow Plaintiff to continue to proceed in forma pauperis on appeal
because he is still in custody. Fed. R. App. P. 24(a)(3); Garreti v. Doe, No. 15-cv-1004-EJM,
2016 WL 9185407, at *1 (N.D. Iowa Mar. 11, 2016).
The Court must also determine whether Plaintiff has appealed in good faith. See 28 U.S.C.
§ 1915(a)(3); Henderson v. Norris, 129 F.3d 481, 485 (8th Cir. 1997). Good faith in this context
is judged by an objective standard rather than the appellant’s subjective beliefs. Coppedge v.
United States, 369 U.S. 438, 445 (1962). To determine whether an appeal is taken in good faith,
the Court must decide whether the claims to be decided on appeal are factually or legally frivolous.
Id. An appeal is frivolous, and therefore cannot be taken in good faith, “where it lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Although the Court
remains satisfied that Plaintiff’s claims in this case have been properly adjudicated, the Court
declines to certify that the appeal is not taken in good faith.
“If the district court does not receive a certified copy of the prisoner’s prison account within
30 days of the notice of appeal, it shall calculate the initial appellate partial filing fee at $35 or
such other reasonable amount warranted by available information.” See Henderson, 129 F.3d at
484-85; see also 28 U.S.C. § 1915(b)(1). Plaintiff failed to submit an additional certified certificate
of his inmate account within 30 days of filing his notice of appeal. The only other available
information regarding Plaintiff’s finances is the inmate account he submitted in 2018, at the
beginning of this case. The 2018 inmate account reflects an average balance of $19.80 during the
six months prior to this case’s commencement. (ECF No. 3, p. 3). In light of that information,
Plaintiff is assessed an initial appellate partial fee of $5.00, which he shall immediately submit to
the Clerk of Court’s office. See Henderson, 129 F.3d at 484-85.
Plaintiff is further directed to submit monthly payments of 20 percent of the preceding
month’s income credited to his inmate account until the remainder of the $505 appellate filing fee
is paid in full. 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff shall forward
payments from his inmate account to the Clerk of Court’s office each time the amount in his
account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the
name and number assigned to this action. The Clerk of Court is DIRECTED to send a copy of
this order to Plaintiff and to the appropriate official at the place where Plaintiff is incarcerated.
IT IS SO ORDERED, this 22nd day of October, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

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