Moore v. Cain et al

Filing 17

ORDER & REASONS denying 16 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge Sarah S. Vance on 12/15/2014. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIEL MOORE

CRIMINAL ACTION

VERSUS

NO: 14-1209

N. BURL CAIN, Warden,
Louisiana State Penitentiary

SECTION: R(3)

ORDER AND REASONS
Petitioner Daniel Moore moves the Court to permit him to
proceed in forma pauperis on appeal.1

Because Moore's appeal is

not taken in good faith, the Court DENIES the motion.

I.

BACKGROUND
Moore is incarcerated at the Louisiana State Penitentiary in

Angola, Louisiana.

On May 14, 2014, Moore filed a petition for

writ of habeas corpus.2 Magistrate Judge Daniel Knowles determined
that an evidentiary hearing was unnecessary, and recommended that
Moore's petition for habeas corpus be denied and dismissed with
prejudice as untimely.3 This Court approved the Magistrate Judge's
Report and Recommendation and adopted it as its opinion on December

1

R. Doc. 16.

2

R. Doc. 3.

3

R. Doc. 11. Specifically, Judge Knowles found that
Moore's federal application for habeas corpus relief had to be
filed no later than August 9, 2011 in order to be timely.
Because Moore's federal application was not filed until May 14,
2014, Judge Knowles concluded that it was untimely.

2, 2014.4

In addition, the Court denied Moore a certificate of

appealability.5

Moore 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.”
§ 1915(a)(1).

28 U.S.C.

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)).

The

court must also determine whether the appeal is taken in good
4

R. Doc. 13.

5

Id.
2

faith. 28 U.S.C. § 1915(3).

"'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.
U.S., 369 U.S. 438, 445 (1962)).

III. DISCUSSION
Moore’s motion to proceed in forma pauperis indicates that his
current drawing account balance is $2.37, and his savings account
balance is $36.00.6

Moore indicates that he has no other assets.

Although Moore's motion to proceed in forma pauperis suggests
his inability to pay fees related to his appeal, the Court denies
his motion because his appeal is not taken in good faith.

The

Court, adopting the Magistrate Judge's Report and Recommendation,
specifically found that Moore's federal application for habeas
corpus relief was untimely.

In his notice of appeal, Moore merely

reiterates the claims he presented in his original application and
does not seek appellate review of the timeliness determination for
which his petition was denied.7

Even if Moore indicated that he

intended to appeal this issue, such an appeal is frivolous for the
reasons stated in the Magistrate Judge's Report and Recommendation
and the Court's order denying Moore a certificate of appealability.

6

R. Doc. 16.

7

See R. Doc. 15.
3

Accordingly, Moore's appeal is not taken in good faith and his in
forma pauperis motion is denied.

IV.

CONCLUSION
For the foregoing reasons, the Court DENIES petitioner’s

motion to proceed in forma pauperis on appeal.

New Orleans, Louisiana, this 15th day of December, 2014.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

4