Hines v. Smith et al

Filing 144

ORDER Declining to Adopt Report and Recommendation 139 Report and Recommendation; granting 143 Application on Proceed In Forma Pauperis on Appeal (Written Opinion) Signed by Senior Judge David S. Doty on 5/15/2018. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-3797(DSD/SER)
FREDRICK DEWAYNE HINES,
Plaintiff,
v.

ORDER

MICHELLE SMITH, Warden, “MNDOC”
Oak Park Heights; TAMMY WHERELY,
Associate Warden Administration;
DAVID RHESUIS, Associate Warden
Operation; SHAR MIKE, Program
Director ACU/CX-5 Units;
SHERILINDA WHEELER, Program
Director; UNKNOWN MAGADANZ,
Lieutenant ACI/CX-5, CX-7 Units;
and Dan Meyer, Lieutenant
ACU-CX-5 Units, individually and
in their official capacities,
Defendants.
This matter is before the court upon pro se plaintiff Fredrick
Dewayne Hines’s objection to the April 26, 2018, report and
recommendation

(R&R)

of

Magistrate

Judge

Steven

E

Rau,

and

application to proceed on appeal in forma pauperis. In his report,
the magistrate judge recommended that the case be dismissed without
prejudice for failure to prosecute.

BACKGROUND
The underlying facts are not in dispute and will not be
repeated except as necessary.

On November 1, 2016, Hines filed a

complaint alleging that the Minnesota Department of Corrections
(DOC) transferred him from the Minnesota Correctional Facility in
Stillwater (MCF-Stillwater) to the Minnesota Correctional Facility

in Oak Park Heights (MCH-OPH) in retaliation for filing federal
lawsuits. He also alleges that inmates were assigned to cells near
him in order to intimidate or kill him, and that MCF-OPH employees
did nothing when he informed them of the threats on his life.

He

further contends that MCF-OPH employees took other actions to
endanger his life and conspired with prisoners to kill him.
On September 19, 2017, Hines filed a motion to amend his
complaint because he wished to add defendants and allegations that
defendants

conspired

to

confiscate

his

legal

documents

and

interfere with his ability to pursue his federal claim and raped
him.

See ECF Nos. 68, 80, 97.

On October 23, 2017, the court

granted Hines’s motion to amend his complaint and directed Hines to
file an amended complaint within thirty days.

Hines v. Smith, No.

16-3797, 2017 WL 5593526, at *6 (D. Minn. Oct. 23, 2017).

The

magistrate judge instructed Hines that failure to timely file an
amended complaint would result in a recommendation of dismissal.
Id.

Although his amended complaint was due on December 18, 2017,

the court granted Hines two extensions, resulting in a deadline of
April 13, 2018.

See ECF Nos. 116, 120.

Because Hines failed to

timely file an amended complaint, the magistrate judge recommended
that the case be dismissed without prejudice.
On May 8, 2018, Hines filed a notice of appeal to the Eighth
Circuit concerning the court’s previous denial of injunctive relief
and an application to proceed on appeal in forma pauperis. See ECF

2

Nos. 135, 141, 143.

DISCUSSION
I.

Objections
The court reviews the R&R de novo. 28 U.S.C. § 636 (b)(1)(C);

D. Minn. LR 72.2(b).

After a careful review, the court finds that

the R&R is well reasoned and correct.
First, Hines objects to the R&R arguing that the defendants
confiscated the amended complaint.

The court, however, finds that

this claim is not credible in light of the numerous memoranda,
motions, and letters that Hines has successfully submitted to the
court.
Hines next requests that the court allow his initial complaint
to serve as the operative complaint.

In the interest of justice

and to prevent further delay in adjudicating the merits of Hines’s
claims, the court will grant the request.1
II.

IFP Application
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 cannot afford to pay the full
1

The court makes no finding as to whether Hines’s initial
complaint states sufficient facts to give rise to a claim upon
which relief can be granted. The court also notes that it would
have adopted the R&R but for Hines’s new request to treat the
initial complaint as the operative complaint.
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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).
Based upon the IFP application, the court is satisfied that
Hines is financially eligible for IFP status.

The court assesses

“an initial partial filing fee of twenty percent of the greater of
... the average monthly deposits to the prisoner’s account[] or the
average monthly balance in the prisoner’s account for the six-month
period immediately preceding the filing of the ... notice of
appeal.”

Id. § 1915(b)(1).

Hines’s trust account certificate

shows that the average monthly deposits for the preceding six
months was $0.97, and his average monthly balance for the preceding
six months was zero dollars. See ECF No. 143. Therefore, the court
calculates that Hines’s initial partial filing fee is $0.19, plus
continuing monthly payments in accordance with 28 U.S.C. § 1915(b).
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.
369 U.S. 438, 444-45 (1962).

Coppedge v. United States,

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.

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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).
Although the court remains fully satisfied that Hines’s motion
for injunctive relief was properly denied, his 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 § 1915(a)(3), and the IFP application will be granted.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

The court declines to adopt the R&R [ECF No. 139];

2. The operative complaint in this matter will be the initial
complaint that Hines filed on November 1, 2016 [ECF No. 1];
3.

The court will consider only those allegations that are

contained in the operative complaint; and
4.

The application to proceed in forma pauperis on appeal

[ECF No. 143] is granted.

Dated: May 15, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court

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