Carlone v. Heat and Frost Insulators and Allied Workers Local 34

Filing 13

ORDER granting 11 Application on Proceed In Forma Pauperis on Appeal (Written Opinion). Signed by Judge Susan Richard Nelson on 06/20/2014. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Patrick A. Carlone,

Civil No. 14-579 (SRN/JSM)

Plaintiff-Appellant,
v.
ORDER
Heat and Frost Insulators and Allied Workers
Local 34,
Defendants-Appellees.

This matter is before the Court on Plaintiff’s application for leave to proceed in forma
pauperis, (“IFP”), on appeal. (Docket No. 11.) Plaintiff is seeking appellate review of a Report and
Recommendation to dismiss the action and to Deny his Application to Proceed in District Court
without Prepayment of Fees or Costs. (Docket No. 9.)
A litigant who seeks to be excused from paying the $500 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 and
costs for his or her appeal. 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). See also Fed. R. App. P. 24(a)(3). To determine whether an appeal
is taken in good faith, the Court must decide whether the claims to be presented 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).
In this case, Plaintiff’s IFP application indicates that he is not currently employed, and that

his only income is a retirement benefit of $840 per month, and another public assistance benefit of
$330 per month. The IFP application also indicates that Plaintiff has few assets – two vehicles with
estimated values of $1,000 and $1,500 – that could be used to pay the filing fee and costs for his
appeal. Based on the representations made in Plaintiff’s IFP application, the Court finds that he is
financially eligible for IFP status on appeal.
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 for IFP
purposes. Therefore, Plaintiff’s current IFP application will not be denied for lack of good faith.
Based upon the foregoing, and all of the files, records and proceedings herein,
IT IS HEREBY ORDERED that:
Plaintiff’s application to proceed in forma pauperis on appeal, (Docket No. 11), is
GRANTED.

Dated: June 20 , 2014
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District udge

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