Carlson v. Dooly et al

Filing 21

ORDER: Plaintiff is assessed the $455 appellate filing fees. The prison officials at the institution where Plaintiff is incarcerated shall pay the $12.00 initial partial appellate filing fee from Plaintiff's account to the Clerk of Co urt. The prison officials at the institution where Plaintiff is incarcerated shall pay the remaining balance of his appellate filing fees, $443.00, from his account to the Clerk of Court in the manner prescribed by 28 U.S.C. § 1915(b)(2). Plaintiff's application to proceed IFP on appeal [Docket No. 15] is GRANTED. The Clerk of Court shall send copies of this Order to Plaintiff, to the prison officials at the institution where Plaintiff is incarcerated, and to the United States Court of Appeals for the Eighth Circuit. (Written Opinion) Signed by Judge Joan N. Ericksen on July 1, 2013. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
David R. Carlson,
Plaintiff,
v.

Civil No. 13-241 (JNE/JJG)
ORDER

D.O.C. Prison Warden Becky Dooly, Sgt.
Johnson, and Sgt. Holt,
Defendants.
On April 24, 2013, the Court adopted a Report and Recommendation, dismissed
Plaintiff’s Complaint, and entered judgment. Plaintiff filed a notice of appeal and an application
to proceed in forma pauperis (IFP) on appeal. On June 27, 2013, the Court granted Plaintiff’s
motion to proceed IFP on appeal. On June 28, 2013, the Eighth Circuit Court of Appeals
remanded the case for calculation and collection of appellate filing fees pursuant to Henderson v.
Norris, 129 F.3d 481 (8th Cir. 1997) (per curiam).
Plaintiff is incarcerated at the Minnesota Correctional Facility-Moose Lake. To qualify
for IFP status on appeal, a prisoner who appeals from a judgment in a civil action must submit
information that demonstrates the prisoner’s inability to pay, or give security for, the appellate
filing fees. 28 U.S.C. § 1915(a)(1) (2000). The prisoner must also submit a certified copy of the
trust fund account statement for the prisoner for the six-month period immediately preceding the
filing of the notice of appeal. Id. § 1915(a)(2). Even if the prisoner obtains IFP status on appeal,
the prisoner is liable for payment in full of the $455 appellate filing fees without regard to the
outcome of the appeal. Id. § 1915(b)(1); Henderson, 129 F.3d at 484. By filing a notice of
appeal, the prisoner consents to the deduction of an initial partial appellate filing fee and the
remaining installments from his prison account by prison officials. Henderson, 129 F.3d at 484.

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Even if the prisoner is financially eligible to proceed IFP on appeal, the prisoner may not appeal
IFP if the district court “certifies in writing that [the appeal] is not taken in good faith.” 28
U.S.C. § 1915(a)(3).
The Court has already found that, based on the information submitted by Plaintiff, he is
financially eligible for IFP status on appeal. The Court also declined to certify that Plaintiff’s
appeal was not taken in good faith. Plaintiff’s initial partial appellate filing fee is $12.00. 1 See
id. § 1915(b)(1); Henderson, 129 F.3d at 485. The Clerk of Court shall (1) notify the prison
officials at the institution where Plaintiff is incarcerated to pay Plaintiff’s $12.00 initial partial
appellate filing fee from Plaintiff’s account; (2) notify the prison officials to pay the remaining
balance of Plaintiff’s appellate filing fees, $443.00, from Plaintiff’s account in the manner
prescribed by 28 U.S.C. § 1915(b)(2); and (3) send a copy of this Order to Plaintiff and to the
prison officials. See Henderson, 129 F.3d at 485.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

Plaintiff is assessed the $455 appellate filing fees.

2.

The prison officials at the institution where Plaintiff is incarcerated shall pay the
$12.00 initial partial appellate filing fee from Plaintiff’s account to the Clerk of
Court.

3.

The prison officials at the institution where Plaintiff is incarcerated shall pay the
remaining balance of his appellate filing fees, $443.00, from his account to the
Clerk of Court in the manner prescribed by 28 U.S.C. § 1915(b)(2).

4.

Plaintiff’s application to proceed IFP on appeal [Docket No. 15] is GRANTED.

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The Certificate of Authorized Prison Official that Plaintiff submitted in support of his
application to proceed IFP on appeal indicates that the average monthly deposits to Plaintiff’s
account was $60.00 and that the average monthly balance in his account was $20.35. The initial
partial appellate filing fee is $12.00 ($60.00*20%=$12.00). 28 U.S.C. § 1915(b)(1).
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5.

The Clerk of Court shall send copies of this Order to Plaintiff, to the prison
officials at the institution where Plaintiff is incarcerated, and to the United States
Court of Appeals for the Eighth Circuit.

Dated: July 1, 2013
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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