Avila v. Bellefy

Filing 83

ORDER granting 78 Application to Proceed In Forma Pauperis on Appeal; granting 79 Application to Proceed In Forma Pauperis on Appeal. (Written Opinion) Signed by Judge Susan Richard Nelson on 11/26/2024. (MJC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Adolfo Gutierrez Avila, Jr.,

Case No. 22-CV-0180 (SRN/DTS)

Plaintiff,
ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS
ON APPEAL

v.
Ryan Bellefy, Being sued in his individual
capacity,
Defendant.

SUSAN RICHARD NELSON, United States District Judge
Plaintiff Adolfo Gutierrez Avila, Jr., has applied for in forma pauperis (“IFP”) status
on appeal. See Doc. Nos. 78 & 79. Avila was found to qualify financially for IFP status
upon initiating this action, see Doc. No. 9, and therefore qualifies for IFP status on appeal
with no further authorization of the Court required, see Fed. R. App. P. 24(a)(3).
Nevertheless, to make clear that Avila may proceed IFP on appeal, the appellate IFP
application will be granted.
That said, because Avila is a prisoner, see 28 U.S.C. § 1915(h), the IFP application
is governed by 28 U.S.C. § 1915(b), which requires that prisoners seeking IFP status pay
an initial partial filing fee upon initiating an appeal. The initial partial filing fee owed by
the prisoner-litigant is twenty percent of the greater of the average monthly deposits to the
plaintiff’s facility trust account or the average balance in the plaintiff’s account for the sixmonth period immediately preceding the filing of the appeal. See 28 U.S.C. § 1915(b)(1).

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The Court has calculated the initial partial filing fee owed on appeal from the facility
trust account submitted by Avila, see Doc. No. 78 at 6, and finds that Avila must submit
an initial partial filing fee of $40.87. 1 That amount is due and payable immediately. The
entire remaining balance of the $605.00 statutory filing fee will have to be paid in later
installments. Officials at the facility where Avila is confined will be notified of this
requirement and will be authorized to withdraw funds from Avila’s facility trust account
and remit those funds to the Court, consistent with § 1915(b).
CONCLUSION
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

The application to proceed in forma pauperis on appeal of plaintiff Adolfo

Gutierrez Avila, Jr. [Doc. Nos. 78 & 79] is GRANTED.
2.

Avila must pay an initial partial filing fee of at least $40.87 within 21 days

of the date of this order.
3.

Avila must pay the remainder of the unpaid balance ($564.13) of the statutory

filing fee for this action in the manner prescribed by 28 U.S.C. § 1915(b)(2), and the Clerk

Avila’s trust account statement shows that the amount of his average monthly
deposits during the preceding six-month period was $204.35, while his average balance
during the same period was $33.57. See Docket No. 78 at 6. Because the deposits amount
exceeds the balance amount, Avila’s initial partial filing fee in this case, under the formula
prescribed by 28 U.S.C. § 1915(b)(1), will be twenty percent of the average deposits
amount, or $40.87.
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of Court shall provide notice of this requirement to the authorities at the institution where
Avila is confined.

Dated: November 26, 2024

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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