Pomerenke v. Bird

Filing 11

ORDER denying 7 Application on Proceed In Forma Pauperis on Appeal (Written Opinion). Signed by Senior Judge David S. Doty on 10/23/2012. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1757(DSD/JJG)
Kevin David Pomerenke,
Plaintiff,
ORDER

v.
Cheryl Bird c/o I.R.S.,
Defendant.

This matter is before the court upon the application of pro se
plaintiff Kevin David Pomerenke to proceed in forma pauperis (IFP)
on appeal.
A litigant who seeks to be excused from paying the filing fee
for an appeal may apply for IFP status under 28 U.S.C. § 1915.
also Fed. R. App. P. 24(a).

See

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).

Good faith in this context is

judged by an objective standard and not by the subjective beliefs
of the appellant.

Coppedge v. United States, 369 U.S. 438, 444-45

(1962). To determine whether an appeal is taken in good faith, the
court must decide whether the claims to be decided on appeal are
factually or legally frivolous.

Id. at 445.

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).
This court denied Pomerenke’s previous application for IFP and
dismissed the action for failure to state a claim.
Pomerenke

seeks

to

appeal

the

dismissal

“indesisiveness [sic] of the courts.”

ECF No. 4.

based

ECF No. 6.

on

the

The court,

however, must dismiss an action if it determines that the plaintiff
fails to state a claim on which relief may be granted.
§ 1915(e)(2)(B)(ii).

28 U.S.C.

For the reasons set forth in the court’s

August 17, 2012, order, Pomerenke’s action fails to state a claim
on which relief may be granted.

See ECF No. 4.

The court has carefully reviewed the record in this case,
including the August 17, 2012, order.

Based on its review of the

record and file, the court concludes that plaintiff’s contentions
lack an arguable basis in fact or law and that an appeal of this
action would not be taken in good faith.

Accordingly, based upon

the foregoing, and all of the files and proceedings herein, IT IS
HEREBY ORDERED that plaintiff’s application to proceed in forma
pauperis [ECF No. 7] is denied.
Dated:

October 23, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court

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