Ducros v. Cain et al

Filing 32

AMENDED ORDER AND REASONS vacating 30 Order; granting 27 MOTION for Leave to Appeal in forma pauperis. Signed by Chief Judge Sarah S. Vance.(gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID DUCROS

CIVIL ACTION

VERSUS

NO: 09-6977

BURL CAIN, WARDEN

SECTION: R
AMENDING ORDER AND REASONS

This order vacates the Court’s order (R. Doc. 30) which
denied Ducros’s motion for leave to appeal in forma pauperis.
Because the Court was not aware that the previous Judge on this
matter issued a certificate of appealability, the Court
determines that its earlier order was in error and enters the
following order GRANTING Ducros’s motion for leave to file in
forma pauperis.

I. Background
Ducros is a state prisoner incarcerated at the Louisiana
State Penitentiary, Angola, Louisiana.

He was convicted of

second-degree murder in state court and was sentenced to life in
prison without benefit of parole, probation, or suspension of
sentence on December 4, 2003.
After unsuccessfully proceeding through the state appeal and
post-conviction process, Ducros filed a habeas corpus petition
asserting a number of claims.

These claims included a challenge

to the state-court’s jury instructions, a contention that his

counsel was constitutionally ineffective, and an assertion that
there was insufficient evidence to convict him.

The Magistrate

Judge recommended that all of his claims be denied on the
merits.1

This Court adopted the Report and Recommendation2 and

issued a certificate of appealability.3

Ducros moved to proceed

with his appeal in forma pauperis.4

II. Standard
A plaintiff may proceed in an appeal in forma pauperis when
he “submits an affidavit that includes a statement of all assets
[he] possesses [and] that [he] is unable to pay such fees or give
security therefor.”
P. 24(a).

28 U.S.C. § 1915(a)(1); see also FED. R. APP.

A court may dismiss the case at any time if it

determines that the allegation of poverty is untrue, that the
appeal is frivolous or malicious, that the appeal fails to state
a claim on which relief may be granted, or that the appeal seeks
monetary relief against a defendant who is immune from such
relief.

Id. § 1915(e).

A district court has discretion in

deciding whether to grant or deny a request to proceed in forma
pauperis.

Williams v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982)

1

R. Doc. 16.

2

R. Doc. 19.

3

R. Doc. 20.

4

R. Doc. 27.
2

(per curiam); see also Prows v. Kastner, 842 F.2d 138, 140 (5th
Cir. 1988) (“A district court has discretion, subject to review
for abuse, to order a person to pay partial filing fees where the
financial data suggests that the person may do so without
suffering undue financial hardship.”).

The district court must

inquire as to whether the costs of appeal would cause an undue
financial hardship.

Prows, 842 F.2d at 140; see also Walker v.

Univ. of Tex. Med. Branch, No. 08-417, 2008 WL 4873733, at *1
(E.D. Tex. Oct. 30, 2008) (“The term ‘undue financial hardship’
is not defined and, therefore, is a flexible concept.

However, a

pragmatic rule of thumb contemplates that undue financial
hardship results when prepayment of fees or costs would result in
the applicant’s inability to pay for the ‘necessities of life.’”)
(quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
339 (1948)).

III. Discussion
Ducros’s motion to proceed in forma pauperis indicates that
he had an average monthly balance of $219.08 for the six months
before he filed this motion.

Ducros reports no other accounts or

resources and he is not employed.

This suggests that Ducros is

unable to pay the costs of appeal.
An appeal may not be taken in forma pauperis if it is not in
good faith.

28 U.S.C. § 1915(a)(3); see also Fed. R. App. P.
3

24(a)(4)(B).

“‘Good faith’ is demonstrated when a party seeks

appellate review of any issue ‘not frivolous.’” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (quoting Coppedge v. United
States, 369 U.S. 438, 445 (1962)).

A determination of an IFP

movant’s good faith, while necessitating a brief inquiry into the
merits, is limited to whether the appeal involves legal points
arguable on their merits.

United States v. Misher, 401 F. App’x

981, 981 (5th Cir. 2010) (quoting Howard, 707 F.2d at 220).

“A

complaint is frivolous if it lacks an arguable basis either in
law or in fact.”

Kingery v. Hale, 73 F. App’x 755, 755 (5th Cir.

2003) (citing Denton v. Hernandez, 504 U.S. 25, 31-33 (1992)).
Because Judge McNamara of this Court issued a certificate of
appealability finding that Ducros made a substantial showing of
the denial of a constitutional right related to the defendant’s
right to testify and the “reasonable doubt” charge (R. Doc. 20),
the Court finds that Ducros demonstrated that his appeal is taken
in good faith.
Accordingly, the Court GRANTS Ducros’s motion for leave to
appeal in forma pauperis.

17th

New Orleans, Louisiana, this

day of October, 2011.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
4