Peterson v. Kopp et al

Filing 35

ORDER granting 34 Application on Proceed In Forma Pauperis on Appeal. (Written Opinion). Signed by Judge Richard H. Kyle on 11/20/12. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Robert Aaron Peterson,
Plaintiff-Appellant,

Civil No. 11-2578 (RHK/FLN)
MEMORANDUM AND ORDER

v.
Officer Michael Kopp, and
Metropolitan Council,
Defendants-Appellees.

This matter is presently before the Court on Plaintiff’s application for leave to proceed in
forma pauperis (“IFP”) on appeal. (Doc. No. 34.) Plaintiff is attempting to appeal the order and
judgment entered on October 15, 2012, which caused this action to be dismissed. (Doc. Nos. 31 and
32.)
A litigant who seeks to be excused from paying the $455 filing fee for an appeal in a federal
case may apply for IFP status under 28 U.S.C. § 1915. See also Fed. R. App. P. 24(a). To qualify
for IFP status, the litigant must demonstrate that he or she cannot afford to pay the full filing fee.
28 U.S.C. § 1915(a)(1). Even if a litigant is found to be indigent, however, IFP status will be denied
if the Court finds that the litigant’s appeal is not taken “in good faith.” 28 U.S.C. § 1915(a)(3); Fed.
R. App. P. 24(a)(3). An appeal is not taken in good faith if the claims to be raised on appeal are
factually or legally frivolous. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). An appeal
is frivolous, and therefore cannot be taken in good faith, “where it lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In this case, Plaintiff’s IFP application indicates that he is currently employed, but his gross
income is only $500 per month. The IFP application also indicates that Plaintiff is not receiving any

other income from any other source, he has no bank accounts, and he has no assets that could be
used to pay the filing fee and costs for his appeal. Based on the information furnished in Plaintiff’s
IFP application, the Court finds that he is financially eligible for IFP status.
Although the Court remains fully satisfied that this action was properly dismissed, Plaintiff’s
appeal is not deemed to be “frivolous,” as that term has been defined by the Supreme Court.
Therefore, Plaintiff’s appeal is considered to be taken “in good faith” for purposes of 28 U.S.C.
§ 1915(a)(3) and Fed. R. App. P. 24(a)(3), and his IFP application will be granted.
Based upon the foregoing, and all of the files, records and proceedings herein,
IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma pauperis on
appeal (Doc. No. 34), is GRANTED.
Dated: November 20, 2012
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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