Howard v. Rodgers et al
Filing
114
MEMORANDUM AND ORDER ENTERED: Plaintiff Bryan Richard Howard's Motion to Appeal in Forma Pauperis 113 is denied without prejudice to refiling with appropriate supplemental documents. Signed by District Judge Daniel D. Crabtree on 05/02/19. Mailed to pro se party Bryan Richard Howard by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRYAN RICHARD HOWARD,
Plaintiff,
Case No. 17-3019-DDC-TJJ
v.
RAY RODGERS, et al.,
Defendants.
MEMORANDUM AND ORDER
This case is before the court on pro se1 plaintiff Bryan Richard Howard’s Motion to
Appeal in Forma Pauperis (Doc. 113). Mr. Howard asks the court to allow him to proceed on his
appeal “without prepayment of fees and costs or security.” Doc. 113 at 1. For reasons explained
below, the court denies Mr. Howard’s motion without prejudice to refiling.
I.
Background
Mr. Howard brought a Bivens2 action against defendants Ray Rodgers, Doug Wettlauffer,
Paul Leonhard, Roger Crooks, and Kimberly Maurelli. Mr. Howard’s Amended Complaint
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Originally, an attorney represented Mr. Howard. But counsel moved to withdraw, and the court
granted counsel’s motion. Docs. 102, 107. So, Mr. Howard now represents himself. Because Mr.
Howard proceeds pro se, the court construes his filings liberally and holds them to “a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (“[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff could
prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various
legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.”); see also Clark v. Oklahoma, 468 F.3d 711, 713 n.1 (10th Cir. 2006). But the court does
not become an advocate for the pro se party. See Hall, 935 F.2d at 1110. Likewise, Mr. Howard’s pro se
status does not excuse him from complying with the court’s rules or facing the consequences of
noncompliance. See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price,
17 F.3d 1276, 1277 (10th Cir. 1994)).
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
alleged that defendant Ray Rodgers sexually assaulted him, and the other defendants failed to
protect Mr. Howard from this assault. See Doc. 94 at 6–12.
On June 26, 2018, the court granted defendants’ Motion for Summary Judgment. Doc.
100. Defendants had raised Mr. Howard’s failure to exhaust his administrative remedies as an
affirmative defense to his claims. The court held that the summary judgment facts established
Mr. Howard had failed to assert an administrative complaint alleging the same facts as Mr.
Howard’s Complaint. Mr. Howard thus had not exhausted his administrative remedies, as the
Prison Litigation Reform Act of 1995 (“PLRA”) requires. Based on his failure to exhaust, the
court granted summary judgment against Mr. Howard’s claim. Mr. Howard then filed a
Motion for Reconsideration (Doc. 104) asking the court to revisit the summary judgment
decision memorialized in the June 26, 2018, Order. The court denied Mr. Howard’s Motion for
Reconsideration. Doc. 109.
Now, Mr. Howard has filed a Motion to Appeal in Forma Pauperis. Doc. 113. He has
filed a Notice of Appeal (Doc. 110), but he explains in his motion that he cannot afford to prepay
the $505 filing fee for initiating an appeal to the Tenth Circuit ($5.00 filing fee and $500.00
docket fee).
II.
Legal Standard
Proceeding in forma pauperis is governed by 28 U.S.C. § 1915. Section 1915(a)(1)
provides that “any court of the United States may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment
of fees or security therefor, by a person who submits an affidavit that includes a statement of all
assets such prisoner possesses that the person is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). Also, “[a] prisoner seeking to bring a civil action or appeal a
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judgment in a civil action or proceeding without prepayment of fees or security therefor, in
addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust
fund account statement (or institutional equivalent) for the prisoner for the 6-month period
immediately preceding the filing of the complaint or notice of appeal, obtained from the
appropriate official of each prison at which the prisoner is or was confined.” Id. at § 1915(a)(2).
This statute also provides that all prisoners bringing civil actions or appeals must pay the
full amount of filing and docketing fees. Id. at § 1915(b)(1). So, “if a prisoner tenders less than
full fees when a notice of appeal is filed, the district court shall obtain sufficient information to
determine the prisoner’s eligibility to make partial payments of the full fee, and, if the prisoner is
eligible, assess a partial filing fee under the Act.” 10th Cir. R. 24.1. In short, the court will
authorize a partial filing fee only if it is satisfied that the applicant is unable to pay the requisite
fees immediately. Id.
III.
Analysis
Mr. Howard did not tender a filing fee when he filed his Notice of Appeal (Doc. 110).
But, he filed his Motion to Appeal in Forma Pauperis about one month after he filed his Notice
of Appeal. His motion contains an affidavit attesting that, “because of [his] poverty, [Mr.
Howard] cannot prepay the docket fees of [his] appeal or post a bond for them.” Doc. 113-1 at 1.
He also attests that he “believe[s] [he is] entitled to redress.” Id. Also, Mr. Howard attached to
his motion an “inmate trust account statement” (Doc. 113-2) that lists his inmate account
transactions beginning January 8, 2019, until March 1, 2019. Mr. Howard’s affidavit also asserts
that his employment in prison pays him $25 per month, and that he receives an average of $50
per month from family and friends.
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But, Mr. Howard’s motion does not provide the court with inmate account statements for
the six-month period preceding the filing of his Notice of Appeal, which he docketed on
February 15, 2019. See Doc. 110. The inmate account statements that Mr. Howard has provided
only date back to January 8, 2019, just over a month before he filed his Notice of Appeal. Since
Mr. Howard has neglected to provide information that the court must use to determine whether
Mr. Howard is “eligib[le] to make partial payments of the full fee,” 10th Cir. R. 24.1, the court
denies Mr. Howard’s motion without prejudice. He may refile it with the appropriate
supplemental documents.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Bryan Richard
Howard’s Motion to Appeal in Forma Pauperis (Doc. 113) is denied without prejudice to refiling
with appropriate supplemental documents.
IT IS SO ORDERED.
Dated this 2nd day of May, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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