Riscoe et al v. United States of America Food and Drug Administration

Filing 38

ORDER denying 37 Plaintiff's motion for leave to appeal in forma pauperis. Plaintiff shall pay the appeal filing fee within 30 days of the date of this Order. Signed by Magistrate Judge Teresa J. James on 6/21/2017. Mailed to pro se plaintiff Gerald Riscoe by regular mail on 6/21/2017. (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GERALD M. RISCOE,
et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA FOOD
AND DRUG ADMINISTRATION,
Defendant.

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Case No. 16-2653-CM-TJJ

ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
Plaintiff Gerald Riscoe has filed a notice of appeal of the Court’s April 25, 2017 Judgment
(ECF No. 33) and Memorandum and Order (ECF No. 32) granting Defendant’s motion to dismiss.
He has filed a motion to proceed in forma pauperis on appeal (ECF No. 37), which is presently
pending before the Court.
Federal Rule of Appellate Procedure 24(a)(1) provides that a party who has not already
been granted leave to proceed in forma pauperis in the district court action and who wishes to
proceed in forma pauperis on appeal must file a motion in the district court. The rule also
provides that the moving party “must attach an affidavit that: (A) shows in the detail prescribed by
Form 4 of the Appendix of Forms, the party’s inability to pay or give security for fees or costs; (B)
claims an entitlement to redress; and (C) states the issues that the party intends to present on
appeal.”
The Court has reviewed Plaintiff’s motion and finds that his motion to proceed in forma
pauperis on appeal must be denied. First, Plaintiff failed to provide the financial information

requested in the affid
d
davit accomp
panying his motion for p
m
permission to appeal in f
o
forma pauper
ris.
Second, Plaintiff wro on the fac of the affi
P
ote
ce
fidavit that he concedes h has suffic
e
he
cient assets to pay
o
the appea filing fee. In his motio he again states his fam does ha funds to p the filing fee,
al
on,
s
mily
ave
pay
g
but asks that he be pe
t
ermitted to proceed with his appeal w
p
h
without payi the fee u front. He s
ing
up
states
that if he is awarded damages, th filing fee can be deduc
he
c
cted from th proceeds. Because Pla
he
aintiff
failed to provide any financial information in his affidavi and expres concede that he ha
n
it
ssly
ed
as
sufficient assets to pa the appea filing fee, the Court co
t
ay
al
t
oncludes that Plaintiff ha not shown a
t
as
n
financial inability to pay the appe filing fee
eal
e.
IT IS THERE
T
EFORE ORD
DERED that Plaintiff’s m
motion for le
eave to proce in forma
eed
a
pauperis on appeal (E No. 37) is DENIED Plaintiff sh pay the appeal filing fee within 30
ECF
)
D.
hall
g
n
days of the date of th Order.
t
his
IT IS SO ORD
T
DERED.
Dated in Kan City, Ka
D
nsas
ansas on this 21th day of June, 2017.
f
.

Ter
resa J. James
s
U. S Magistrat Judge
S.
te