Peterson v. Monroe, County of et al

Filing 66

ORDER Granting 59 Application to Proceed on Appeal Without Prepayment of Fees or Costs filed by Bradley Peterson. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRADLEY PETERSON,
Plaintiff,

No. 12-11460
HON. MARK A. GOLDSMITH

vs.
COUNTY OF MONROE, et al.,
Defendants.
____________________________/

ORDER GRANTING APPLICATION TO PROCEED ON APPEAL WITHOUT
PREPAYMENT OF FEES OR COSTS (DKT. 59)
This matter is presently before the Court on Plaintiff’s motion to proceed without
prepayment of fees or costs on appeal (Dkt. 59). On May 29, 2014, the Court entered an Order
requiring Plaintiff to supplement his motion with a completed affidavit that complies with the
requirements set forth in Federal Rule of Appellate Procedure 24(a)(1). Order (Dkt. 64). The
Order required Plaintiff to submit the required affidavit on or before June 11, 2014. Id. Plaintiff
timely submitted the completed affidavit (Dkt. 65).
Federal Rule of Appellate Procedure 24(a)(1) provides:
(1) Motion in the District Court. Except as stated in Rule 24(a)(3), a party to a
district-court action who desires to appeal in forma pauperis must file a motion in
the district court. The 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 to give security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.

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“If the district court grants the motion, the party may proceed on appeal without prepaying or
giving security for fees and costs, unless a statute provides otherwise. If the district court denies
the motion, it must state its reasons in writing.” Fed. R. App. P. 24(a)(2). “A party who was
permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in
forma pauperis without further authorization” unless the district court concludes the party is not
entitled to proceed in forma pauperis. Fed. R. App. P. 24(a)(3). The Sixth Circuit has explained:
After this required [affidavit] has been filed, the district court must ascertain both
the individual’s pauper status and the merits of the appeal. If the district court
determines that the individual is not a pauper, that the appeal is not taken in good
faith, or that the individual is not otherwise entitled to pauper status, see Fed. R.
App. P. 24(a)(4), the district court must state its decision in writing, see Fed. R.
App. P. 24(a)(2), and then immediately notify the parties of its decision. See Fed.
R. App. P. 24(a)(4).
Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999).
As an initial matter, Plaintiff did not seek leave to proceed in forma pauperis in the
district-court action, so Rule 24(a)(3) is inapplicable. See Docket Entry 4/2/12 (noting that the
full filing fee was received). The Court, therefore, turns to a determination of Plaintiff’s pauper
status and the good-faith basis for his appeal.
In his affidavit, Plaintiff certifies that his total monthly income is $905.50 from disability
payments and welfare, that he has been unemployed for the past two years, that he has no money
in bank accounts, that he is unmarried, and that he has monthly living expenses totaling $900.00.
Aff. at 5-8 (Dkt. 65). He further certifies that he has mental and physical disabilities and that he
presently resides in an adult foster care home. Id. at 9. The Court has carefully reviewed the
affidavit and concludes that Plaintiff is indigent such that prepayment of the appellate filing fee
would constitute a financial hardship.
The Court next must determine whether Plaintiff’s appeal is taken in good faith. See

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Callihan, 178 F.3d at 803. “‘Good faith’ requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits.” Rodriguez v.
McKee, No. 11-14903, 2014 WL 2199625, at *13 (E.D. Mich. May 27, 2014) (citing Foster v.
Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich. 2002)). In the section of the affidavit regarding
issues to be raised on appeal, Plaintiff asserts that while he was incarcerated, he was kicked in
the head, incurred frostbite after his mattress was removed, and was refused medical treatment
for eight hours after he was assaulted by other inmates. Aff. at 4. In the Court’s analysis of the
summary judgment briefing, the Court noted that the record indicates Plaintiff was involved in a
fight with other inmates, after which he incurred a broken rib and pneumothorax. Opinion at 1415 (Dkt. 56). Although the Court granted summary judgment in favor of Defendants, the Court
concludes that Plaintiff’s allegations of serious bodily harm are not frivolous. Accordingly,
Plaintiff’s appeal is taken in good faith.
Because Plaintiff is indigent and because his appeal is taken in good faith, the Court
grants the application to proceed in forma pauperis on appeal. Plaintiff may “proceed on appeal
without prepaying or giving security for fees and costs.” Fed. R. App. P. 24(a)(2).
SO ORDERED.
Dated: June 18, 2014
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on June 18, 2014.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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