Witchard v. Mosley et al

Filing 100

ORDER denying 95 Motion to Vacate; denying 99 Motion to Vacate. Signed by Judge Carlos E. Mendoza on 5/15/2018. (KMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JOSEPH WITCHARD,
Plaintiff,
v.

Case No: 6:14-cv-2042-Orl-41TBS

JEFFREY MORALES and J. PEREZ,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff Joseph Witchard’s Motion Requesting that
the Court Rescind or Vacate its Previous Imposed Order Assessing the $505.00 Appellate Filing
and Docket Fees (“Motion to Rescind,” Doc. 95) and Motion for Nunc Pro Tunc Thus Requesting
the Court to Rescind and/or Vacate Its Previously Imposed Order Assessing the $505.00 Appellate
Filing Fee (“Second Motion to Rescind,” Doc. 99). Plaintiff is asking the Court to vacate the
September 29, 2017, Order denying his Motion for Leave to Appeal In Forma Pauperis (Doc. 87)
and requiring him to pay the full appellate filing fee. (Doc. 89). Plaintiff states that his interlocutory
appeal (Doc. 86) was dismissed for lack of jurisdiction; therefore, he contends that he should not
be required to pay the appellate filing fee. (Doc. Nos. 95 at 1-2; 99 at 1-2).
Federal law provides that “if a prisoner brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full amount of the filing fee.” 18 U.S.C. §
1915(b)(1). Federal courts have concluded that pursuant to the plain language of § 1915(b)(1),
appellate fees must “be assessed at the moment the appeal is filed, regardless of whether the appeal
is later dismissed.” Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997); see also Porter v.
Dep’t of Treasury, 564 F.3d 176, 179 (3d Cir. 2009); Muhammad v. Storr, No. No. 4:97-CV-

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00383-MP, 2014 WL 1613937, at *1 (N.D. Fla. Apr. 22, 2014). Consequently, Plaintiff was
required to pay the full filing fee when he filed his notice of interlocutory appeal, notwithstanding
the fact that the appeal was later dismissed.
Accordingly, it is ORDERED and ADJUDGED that Plaintiff’s Motions (Doc. Nos. 95
and 99) are DENIED.
DONE and ORDERED in Orlando, Florida on May 15, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Party

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