Kalberer v. Teamsters Local 120

Filing 48

ORDER granting 44 Application on Proceed In Forma Pauperis on Appeal; granting 47 Application on Proceed In Forma Pauperis on Appeal. (Written Opinion). Signed by Judge Richard H. Kyle on 02/12/13. (kll) cc: George H. Kalberer. Modified on 2/12/2013 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
______________________________________________________________________________
George H. Kalberer,
Plaintiff-Appellant,

Civil No. 12-1098 (RHK/JSM)
MEMORANDUM AND ORDER

v.
Teamsters Local 120,
Defendant-Appellee.
______________________________________________________________________________
This matter is presently before the Court on Plaintiff’s application for leave to proceed in
forma pauperis (“IFP”) on appeal. (Doc. Nos. 44 and 47.1) Plaintiff is attempting to appeal the
judgment entered on November 14, 2012, that caused this action to be dismissed. (Doc. No. 42.)
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).

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Plaintiff’s initial IFP application, (Doc. No. 44), was missing a page, so Plaintiff filed a
supplemental IFP application, (Doc. No. 47), that includes the previously missing page.

In this case, Plaintiff’s IFP application indicates that he is not currently employed. He has
been receiving some form of retirement and unemployment benefits, but the total amount of those
benefits is not substantial, (and it appears that the unemployment benefits may have recently
terminated). The IFP application also indicates that Plaintiff 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
ORDERED that Plaintiff’s application to proceed in forma pauperis on appeal (Doc. Nos. 44 and
47) is GRANTED.
Dated: February 12, 2013
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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