Kane v. Reisch et al

Filing 15

ORDER granting Leave to Proceed IFP on Appeal. Signed by U.S. District Judge Roberto A. Lange on 6/29/2017. (JLS)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

JUN 2 9 2017

SOUTHERN DIVISION

\

CDl^
XLERK

JAMES WREY KANE,
Plaintiff,

4:17-CV-04007-RAL

vs.

TIM REISCH,
MELINDA JOHNSON,
DOUGLAS WEBER,
. ROBERT DOOLEY,

ORDER GRANTING LEAVE
TO PROCEED IN FORMA
PAUPERIS ON APPEAL

SOUTH DAKOTA DEPARTMENT OF

CORRECTIONS, AND
UNKNOWN CENTRAL RECORDS
SUPERVISORS AND FILING

CLERK(S),
Defendants.

Plaintiff, James Wrey Kane ("Kane"), filed this lawsuit pursuant to 42

U.S.C. § 1983. Doc. 1. This Court screened and dismissed his complaint
without prejudice to refiling. Doc. 7. Kane then moved for reconsideration of

the dismissal. Doc. 9, and this Court denied his motion. Doc. 13. On May 17,
2017, Kane filed a notice of appeal. Doc. 14, but did not move for leave to

proceed in forma pauperis on appeal or submit his prison trust account report.
Under the Prison Litigation Reform Act (PLRA), a prisoner who "files an

appeal in forma pauperis . . . [is] required to pay the full amount of a filing
fee." 28 U.S.C. § 1915(b)(1). This obligation arises"'the moment the

prisoner . . . files an appeal.'" Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997)(quoting In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)). Therefore,
"'[w]hen an inmate seeks pauper status, the only issue is whether the inmate

pays the entire fee at the initiation of the proceedings or over a period of time
under an installment plan.'" Id. (quoting McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997)). "[P]risoners who appeal judgments in civil cases

must sooner or later pay the appellate filing fees in full." Id. (citing Newlin v.
Helman, 123 F.3d 429, 432 (7th Cir. 1997)).
Under Henderson,"failure to file the prison account information . . .

result[s] in the assessment of an initial appellate partial fee of $35 or such
other amount that is reasonable, based on whatever information the court has

about the prisoner's finances." Id. at 484. On January 31, 2017, Kane

submitted a prisoner trust account showing that his average monthly deposits

were $43.40. Doc. 5. Therefore, he must pay an initial partial appellate filing
fee of $8.68, which is 20 percent of $43.40. See 28 U.S.C. § 1915(b)(1).
Accordingly, it is

ORDERED that this Court grants Kane leave to proceed in forma

pauperis on appeal provided he pays an initial partial appellate filing fee of
$8.68 by July 28, 2017, made payable to the Clerk, U.S. District Court. It is
further

ORDERED that the institution having custody of Kane is directed that
whenever the amount in his trust account, exclusive of funds available to him

in his frozen account, exceeds $10, monthly payments that equal 20 percent of

the funds credited to the account the preceding month shall be forwarded to
the United States District Court Clerk's office pursuant to 28 U.S.C.

§ 1915(b)(2), until the appellate filing fee of $505 is paid in full.
Dated June

2017.
BY THE COURT:

ROBERTO A. LANDE

UNITED STATES DISTRICT JUDGE