Burton v. Hoskins et al

Filing 97

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that, within thirty (30) days from the date of this order, plaintiff shall either file a motion to withdraw his appeal, or he shall file a certified copy of his prison account statement for the six-month pe riod immediately preceding the filing of his notice of appeal on April 23, 2014, and a "Motion to Proceed on Appeal in Forma Pauperis and Affidavit in Support - - Prisoner Cases."2 IT IS FURTHER ORDERED that if plaintiff fails to comply wit h this order, the Court will order him to pay the full $505 filing and docketing fees for filing an appeal. IT IS FURTHER ORDERED that the Clerk shall forward to plaintiff, together with a copy of this order, a form "Motion to Proceed on Ap peal in Forma Pauperis and Affidavit in Support - - Prisoner Cases" to complete and return with his certified copy of his inmate trust fund account statement, if he elects not to withdraw his appeal. Response to Court due by 5/28/2014. Signed by District Judge Stephen N. Limbaugh, Jr on 4/28/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
VICTOR RAY BURTON,

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Plaintiff,
v.
STEPHANIE KASTINGS, et al.,
Defendant.

No. 1:10-CV-0165-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on Victor Ray Burton’s Notice of Appeal [Doc. #96].
Background
On March 18, 2014, this Court granted defendants Amanda Gibson, Dr. Michael Hakala,
Stephanie Kasting, and Terry Mitchell summary judgment and dismissed them from this action,
leaving only plaintiff's claims against defendant Terri Martinez.

On April 23, 2014, plaintiff

filed the instant Notice of Appeal seeking to appeal the judgment in favor of Gibson, Hakala,
Kasting, and Mitchell [Docs. #90 and #91].
28 U.S.C. ' 1915 (a)
Title 28 U.S.C. ' 1915(a)(1), (2) requires a prisoner seeking leave to appeal in forma pauperis
to submit an affidavit of indigence and a certified copy of his prison account statement for the six
month period immediately preceding the filing of the notice of appeal. Furthermore, ' 1915(b)(1)
requires a prisoner seeking leave to proceed on appeal in forma pauperis to pay the full amount of
the filing fee. If the prisoner has insufficient funds in his prison account to pay the entire fee, the
Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner=s account; or (2) the average monthly

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balance in the prisoner=s account for the prior six month period. See 28 U.S.C. ' 1915 (b)(1).
After payment of the initial partial filing fee, the prisoner is required to make monthly payments of
20 percent of the preceding month=s income credited to the prisoner=s account. See 28 U.S.C. '
1915 (b)(2). The agency having custody of the prisoner will forward these monthly payments to
the Clerk of Court each time the amount in the prisoner=s account exceeds $10, until the filing fee
is fully paid.
Discussion
Plaintiff has not submitted a motion for leave to proceed in forma pauperis on appeal or a
certified copy of his inmate trust fund account statement; however, the Court notes that its Order of
March 18, 2014, is not a final appealable order. See Bullock v. Baptist Memorial Hospital, 817
F.2d 58 (8th Cir. 1987).
Because it is unclear to the Court whether plaintiff understands that there has not been a final
appealable order issued in his case, the Court will give plaintiff the opportunity either to withdraw
his appeal or to continue with his appeal by submitting a motion for leave to proceed in forma
pauperis and a certified copy of his inmate trust fund account statement for the correct period. If,
in fact, plaintiff wishes to proceed with his appeal, despite the fact that the Court has not issued a
final appealable order, he will be liable for the full $505 appellate filing fee.1
Therefore, the Court will order plaintiff to either file a motion to withdraw his appeal or, if he
wishes to proceed with the appeal, to submit an affidavit and a certified copy of his inmate trust
fund account statement for the six-month period immediately preceding the filing of his notice of
appeal, pursuant to 28 U.S.C. ' 1915 (a)(1)(2).
In accordance with the foregoing,
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The Court notes that after it issues a final order in this case, if plaintiff appeals, he will
again be liable for the $505 appellate filing fee.
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IT IS HEREBY ORDERED that, within thirty (30) days from the date of this order,
plaintiff shall either file a motion to withdraw his appeal, or he shall file a certified copy of his
prison account statement for the six-month period immediately preceding the filing of his
notice of appeal on April 23, 2014, and a AMotion to Proceed on Appeal in Forma Pauperis and
Affidavit in Support - - Prisoner Cases.@2
IT IS FURTHER ORDERED that if plaintiff fails to comply with this order, the Court will
order him to pay the full $505 filing and docketing fees for filing an appeal.
IT IS FURTHER ORDERED that the Clerk shall forward to plaintiff, together with a copy
of this order, a form AMotion to Proceed on Appeal in Forma Pauperis and Affidavit in Support - Prisoner Cases@ to complete and return with his certified copy of his inmate trust fund account
statement, if he elects not to withdraw his appeal.
Dated this 28th day of April, 2014.

_____________________________________
UNITED STATES DISTRICT JUDGE

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If plaintiff chooses to go forward with his appeal at this time, when requesting a certified
copy of his prison account statement, plaintiff is instructed to inform the Department of
Corrections that the account statement must include all activity on his account during the
six-month period preceding the filing of his notice of appeal on April 23, 2014.
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