White v. Cain et al
Filing
23
ORDER AND REASONS denying 21 MOTION for Leave to Appeal in forma pauperis filed by Robert L White. Signed by Chief Judge Sarah S. Vance on 9/24/2014.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT L. WHITE
CRIMINAL ACTION
VERSUS
NO: 12-2906
N. BURL CAIN, Warden,
Louisiana State Penitentiary
SECTION: R(4)
ORDER AND REASONS
Petitioner Robert White moves the Court to permit him to
proceed in forma pauperis on appeal.1
Because White failed to
state the specific issues he intends to raise on appeal, the Court
DENIES White's motion.
I.
BACKGROUND
White
is
currently
incarcerated
at
the
Louisiana
State
Penitentiary in Angola, Louisiana, after his conviction for armed
robbery under Louisiana law.2 On January 28, 2013, White filed a
petition for writ of habeas corpus.3 Magistrate Judge Roby, having
determined that an evidentiary hearing was unnecessary, recommended
that White's petition for habeas corpus be denied and dismissed
with prejudice.4 This Court approved the Magistrate Judge's Report
1
R. Doc. 21.
2
R. Doc. 16 at 1.
3
R. Doc. 3.
4
R. Doc. 16.
and Recommendation and adopted it as its opinion on July 7, 2014.5
In
addition,
the
Court
denied
White
a
certificate
of
appealability.6 White now moves to proceed with his appeal in forma
pauperis.
II.
STANDARD
A
plaintiff may proceed with an appeal in forma pauperis when
he “submits an affidavit that includes a statement . . . that [he]
is unable to pay such fees or give security therefor.” 28 U.S.C. §
1915(a)(1). A district court has discretion in deciding whether to
grant or deny a request to proceed in forma pauperis.
See Prows v.
Kastner, 842 F.2d 138, 140 (5th Cir. 1988); Williams v. Estelle,
681 F.2d 946, 947 (5th Cir. 1982). 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. 1:08-CV–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)).
5
R. Doc. 18.
6
Id.
2
A litigant who wishes to proceed in forma pauperis in the
court of appeals is required to provide the district court with an
affidavit that “states the issues that the party intends to present
on appeal.” Fed. R. App. P. 24(a)(1)(C); 28 U.S.C. § 1915(a)(1)
(requiring affidavit to “state the nature of the ... appeal and
affiant's belief that the person is entitled to redress”).
III. DISCUSSION
White’s motion to proceed in forma pauperis indicates that his
current inmate account balance is $119.55, and his average monthly
deposits for the preceding six months are $88.00.7 White indicates
that he has no other assets.
Although White's motion to proceed in forma pauperis suggests
his inability to pay fees related to his appeal, his motion must be
denied because he has not indicated to the Court the issues he
intends to pursue on appeal as required under Federal Rule of
Appellate Procedure 24(a)(1)(C) and 28 U.S.C. § 1915(a)(1). His in
forma pauperis motion and notice of appeal contain no indication of
the issues that White intends to present on appeal.8 Without such
specification, White’s in forma pauperis motion must be denied. See
McQueen v. Evans, No. 95-50474, 1995 WL 17797616, at *2 (5th Cir.
Oct. 11, 1995) (per curiam) (failure to present issue for appeal in
7
R. Doc. 21 at 2.
8
R. Doc. 20; R. Doc. 21.
3
an in forma pauperis motion constitutes abandonment of that issue);
see also McKinsey v. Cain, No. 09-7729, 2011 WL 2945812, at *1
(E.D. La. July 15, 2011) (denying in forma pauperis motion that
failed to specify the issues to be raised on appeal).
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES petitioner’s
motion to proceed in forma pauperis on appeal. Petitioner may
refile his motion with the necessary specification of the issues he
intends to appeal.
New Orleans, Louisiana, this 24th day of September, 2014.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
4
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