Smith v. Buck

Filing 60

ORDER denying without prejudice 58 Application on Proceed In Forma Pauperis on Appeal (Written Opinion). IT IS HEREBY ORDERED THAT: 1. Plaintiff's motion for leave to appeal in forma pauperis 58 is DENIED WITHOUT PREJUDICE. 2. The Clerk of Court is directed to send a copy of the form "Motion and Affidavit for Permission to Appeal In Forma Pauperis" to plaintiff. Signed by Judge Patrick J. Schiltz on May 3, 2013. (clg)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DEMONE ROYELIO SMITH,

Case No. 12-CV-0163 (PJS/JSM)

Plaintiff,
v.

ORDER

J. BUCK, City of Brooklyn Park Police
Officer,
Defendant.
Demone Royelio Smith, pro se.
Stephanie A. Angolkar and Jon K. Iverson, IVERSON REUVERS CONDON, for
defendant.
This matter is before the Court on the motion of plaintiff Demone Smith for leave to
appeal in forma pauperis (“IFP”). Because Smith is a “prisoner,” see 28 U.S.C. § 1915(h), the
$455 filing fee for his appeal cannot be waived altogether. 28 U.S.C. § 1915(b); Henderson v.
Norris, 129 F.3d 481, 483-84 (8th Cir. 1997) (per curiam). Instead, an order granting IFP status
to a prisoner-appellant merely permits him to pay the filing fee for his appeal in installments,
rather than all in advance. In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997). A prisoner is
required to pay an “initial partial filing fee” upon the commencement of an action or appeal, and
he is required to pay the remaining balance of the fee through periodic deductions from his
prison trust account. 28 U.S.C. § 1915(b). If the prisoner has no assets and no means to pay the
initial partial fee, however, the entire fee is collected according to the installment plan in
§ 1915(b)(2). Henderson, 129 F.3d at 483-84.
Smith submitted a six-month prison financial statement with his IFP application, but he
did not submit an affidavit stating all of his assets as required under 28 U.S.C. § 1915(a)(1). The

Court will therefore deny Smith’s motion without prejudice and direct the Clerk of Court to send
a copy of the form “Motion and Affidavit for Permission to Appeal In Forma Pauperis” to Smith
for him to complete and return.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Plaintiff’s motion for leave to appeal in forma pauperis [ECF No. 58] is DENIED
WITHOUT PREJUDICE.

2.

The Clerk of Court is directed to send a copy of the form “Motion and Affidavit
for Permission to Appeal In Forma Pauperis” to plaintiff.

Dated: May 3, 2013

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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