Williams v. Raynor Rensch & Pfieffer et al

Filing 260

MEMORANDUM AND ORDER that the plaintiff is not entitled to proceed in forma pauperis on appeal. The Clerk of the Court shall process the plaintiff's appeal, and shall provide the parties and the Court of Appeals with a copy of this order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANNON WILLIAMS,
Plaintiff,

8:11-CV-446

vs.
MEMORANDUM AND ORDER
RAYNOR RENSCH & PFIEFFER, et
al.,
Defendants.
This matter is before the Court on its own motion. The plaintiff filed a
Notice of Appeal (filing 256) on July 20, 2015. However, the plaintiff failed to
include the $505.00 filing and docket fees. So, the Court ordered the plaintiff
to either pay the $505.00 filing and docket fees to the Clerk of the Court or
submit a request to proceed in forma pauperis, and set a deadline of August
27, 2015. Filing 259.
That deadline has passed, and the plaintiff has not responded. But the
Court has also considered whether Fed. R. App. P. 24(a)(3) permits the
plaintiff to proceed in forma pauperis on appeal without further
authorization. That rule provides, as relevant, that "[a] party who was
permitted to proceed in forma pauperis in the district-court action . . . may
proceed on appeal in forma pauperis without further authorization . . . ." Id.
But after a careful examination of the record, the Court finds that the
plaintiff was never permitted to proceed in forma pauperis in district court.
This case was removed from state court, so the initial filing fee was
paid by the removing defendant. See 28 U.S.C. § 1914(a). The plaintiff did file
two motions to proceed in forma pauperis with respect to service of process.
See, filing 14; filing 35. Had those motions been granted, they might have
satisfied Rule 24(a)(3). But the plaintiff's motions were denied by the district
court. Filing 59. The motions were never reasserted, and nothing in the
subsequent reconsideration or appeal of that order revisited their denial. See,
filing 82; filing 116 at 1; filing 123; filing 124. The plaintiff was permitted by
the Eighth Circuit to proceed on appeal in forma pauperis, see filing 123, but
Rule 24(a)(3) requires that a party be "permitted to proceed in forma
pauperis in the district-court action" before automatically being permitted to
proceed in forma pauperis on appeal. Id. (emphasis supplied).

In other words, the plaintiff may not proceed in forma pauperis on
appeal without further authorization. And the Court finds that the plaintiff,
having filed no motion to proceed in forma pauperis, is not entitled to do so.
The Clerk of the Court will be directed to process the plaintiff's appeal, and to
provide the parties and the Court of Appeals with a copy of this order, as
required by Fed. R. App. P. 24(a)(4)(C).
The plaintiff is informed that within 30 days of this notice, he may file
a motion to proceed in forma pauperis with the Court of Appeals. See Fed. R.
App. P. 24(a)(5). However, the plaintiff is advised that the filing of a Rule
24(a)(5) motion will result in the immediate assessment of appellate filing
fees under 28 U.S.C. § 1915(b). See Henderson v. Norris, 129 F.3d 481, 485
(8th Cir. 1997).
IT IS ORDERED:
1.

The plaintiff is not entitled to proceed in forma pauperis on
appeal.

2.

The Clerk of the Court shall process the plaintiff's appeal,
and shall provide the parties and the Court of Appeals with
a copy of this order.

Dated this 2nd day of September, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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