Pomerenke v. Bird

Filing 46

ORDER denying 41 Motion to waive the fee for a transcript; granting 45 Application to Proceed In Forma Pauperis on Appeal (Written Opinion). Signed by Senior Judge David S. Doty on 2/27/2014. (PJM)

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

v.
Cheryl Bird c/o IRS,
United States of America,
Defendants.

This matter is before the court upon (1) the application of
pro se plaintiff Kevin David Pomerenke to proceed in forma pauperis
(IFP) on appeal and (2) the motion by Pomerenke to waive the fee
for a transcript of the September 20, 2013, hearing.
I.

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.”

Id. § 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).
Here, Pomerenke’s IFP application indicates that, although he
is employed, 75 percent of his wages are currently subject to
garnishment.

ECF No. 45, at 5.

The application also indicates

that Pomerenke has no bank accounts or other assets that could be
used to pay the filing fee and costs for his appeal.

As a result,

the court finds that Pomerenke is financially eligible for IFP
status.
Although the court remains fully satisfied that this action
was properly dismissed, Pomerenke’s appeal is not “frivolous” as
that term has been defined by the Supreme Court.

As a result, the

appeal is considered to be taken “in good faith” for purposes of 28
U.S.C. § 1915(a)(3).

Therefore, the IFP application will be

granted.
II.

Motion to Waive Transcript Fee
Pomerenke also moves the court to waive the fee for the

transcript

of

the

September

20,

2013,

hearing.

Appellants

proceeding IFP on appeal can have transcript fees waived “if the
trial judge ... certifies that the appeal is not frivolous (but
presents a substantial question).”

28 U.S.C. § 753(f).

An appeal

presents a substantial question when the “issue on appeal[,] judged

2

on

an

objective

debatable.”

basis,

is

a

question

which

is

reasonably

Linden v. Harper & Row, Inc., 467 F. Supp. 556, 558

(S.D.N.Y. 1979) (citation and internal quotation marks omitted).
“An additional factor is whether the transcript is necessary for
the presentation of the appeal.”

Id. (citation omitted).

Here,

for the reasons set out in the court’s January 3, 2014, order
granting defendant’s motion to dismiss for lack of jurisdiction,
the

appeal

debatable.

does

not

Moreover,

present
the

a

question

transcript

of

which
the

necessary for the presentation of the appeal.
motion

to

waive

the

costs

of

the

is

reasonably

hearing

is

not

As a result, the

transcript

is

denied.

Accordingly, IT IS HEREBY ORDERED that the application to proceed
in forma pauperis on appeal [ECF No. 45] is granted and the motion
to waive transcript fees [ECF No. 41] is denied.
Dated:

February 27, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

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