Perry v. Boston Scientific Family et al
ORDER. IT IS HEREBY ORDERED THAT: 1. Plaintiff's motion for a certificate of appealability 60 is DENIED. 2. Plaintiff's motion to proceed in forma pauperis on appeal 61 is GRANTED. The entire $505 filing fee must be paid ove r time in accordance with 28 U.S.C. § 1915(b)(2). 3. Plaintiff's motion for reconsideration and for clarification of report and recommendation on established federal laws 62 is DENIED. (Written Opinion) Signed by Judge Patrick J. Schiltz on February 27, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 16‐CV‐0137 (PJS/HB)
BOSTON SCIENTIFIC FAMILY;
BOSTON SCIENTIFIC CORPORATION;
STEIN, M.D., Chief Medical Officer;
BOSTON SCIENTIFIC CARDIAC
RHYTHM MANAGEMENT et al.;
any Future and any Past John Doe and
Jane Doe defendants in their official and
individual capacities or job positions,
Donald Perry, pro se.
Joseph M. Price, FAEGRE BAKER DANIELS LLP, for defendants.
This matter is before the Court on three motions filed by plaintiff Donald Perry:
(1) a motion for a certificate of appealability [ECF No. 60]; (2) a motion for leave to
proceed in forma pauperis on appeal [ECF No. 61]; and (3) a motion “for reconsideration
. . . and clarification of [the] report and recommendation on established federal laws”
[ECF No. 62].
First, as to Perry’s motion for a certificate of appealability: This is not a habeas
proceeding, and thus Perry can appeal without obtaining a certificate of appealability.
See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Perry’s motion for a certificate of
appealability is therefore denied.
Second, as to Perry’s motion for leave to appeal in forma pauperis (“IFP”):
A litigant who seeks to be excused from paying the filing fee for an appeal in a federal
case may apply for IFP status. 28 U.S.C. § 1915(a)(1); Fed. R. App. P. 24(a). To qualify
for IFP status, the litigant must demonstrate that he cannot afford to pay the full filing
fee. 28 U.S.C. § 1915(a)(1). Based on the disclosures in Perry’s IFP application, the
Court finds that Perry is financially eligible for IFP status.
Because Perry is a prisoner, however, the $505 filing fee cannot be waived. 28
U.S.C. § 1915(b); Henderson v. Norris, 129 F.3d 481, 483‐84 (8th Cir. 1997) (per curiam).
Instead, Perry must pay the filing fee in installments. In re Tyler, 110 F.3d 528, 529‐30
(8th Cir. 1997). As a general matter, a prisoner is required to pay an initial partial filing
fee and then pay the remaining balance through periodic deductions from his prison
trust account. 28 U.S.C. § 1915(b). If the prisoner has no assets and no means to pay the
initial partial fee, the entire fee is collected through periodic deductions. Henderson, 129
F.3d at 483‐84. The Court finds that Perry has no assets or income. Thus, he need not
pay an initial partial filing fee, but he will need to pay the entire fee in installments
pursuant to § 1915(b)(2).
Finally, because Perry is a prisoner, he may not proceed IFP “if the trial court
certifies in writing that [the appeal] is not taken in good faith.” 28 U.S.C. § 1915(a)(3).
Good faith is demonstrated when a defendant seeks review of any non‐frivolous issue.
Coppedge v. United States, 369 U.S. 438, 445 (1962). The Court is satisfied that Perry’s
lawsuit was properly dismissed and that he has no meritorious grounds for appeal. But
the Court will not deem Perry’s appeal to be “frivolous” as that term has been defined
by the Supreme Court. Therefore, the Court finds that Perry’s appeal is taken “in good
faith” for purposes of 28 U.S.C. § 1915(a)(3).
Third, as to Perry’s motion for reconsideration and clarification: Perry previously
sought identical relief through a virtually identical submission. See ECF No. 55. The
Court denied Perry’s motion in an order dated January 4, 2017. ECF No. 57. Perry now
moves for reconsideration of that denial, but he does not state any new grounds
justifying the relief he seeks. Compare ECF No. 55, with ECF No. 62. Accordingly,
Perry’s motion for reconsideration and clarification is denied.
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
Plaintiff’s motion for a certificate of appealability [ECF No. 60] is DENIED.
Plaintiff’s motion to proceed in forma pauperis on appeal [ECF No. 61] is
GRANTED. The entire $505 filing fee must be paid over time in
accordance with 28 U.S.C. § 1915(b)(2).
Plaintiff’s motion for reconsideration and for clarification of report and
recommendation on established federal laws [ECF No. 62] is DENIED.
Dated: February 27, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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