Rattan v. Nichols et al

Filing 33

MEMORANDUM AND ORDER denying as moot 30 Motion to Waive Appeal Bond ; denying 31 Motion for Leave to Appeal in forma pauperis. Signed by Magistrate Judge C Clifford Shirley, Jr on 5/02/2013. (copy mailed) (KMK, )

UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ARUN RATTAN,

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Plaintiff,

V.
RANDY NICHOLS, et al.,
Defendants.

No. 3:12-CV-325
(PHILLIPS/SHIRLEY)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and the referral of the District Judge.
On March 6, 2013, the Court granted the Defendants’ Motion to Dismiss. [Doc. 27].
The Clerk of Court entered Judgment directing that Plaintiff take nothing on the same day. [Doc.
28]. On March 19, 2013, the Plaintiff filed Motion to Waive Appeal Bond [Doc. 30], and on
April 11, 2013, Plaintiff filed a Motion for Leave to Appeal in Forma Pauperis [Doc. 31]. Both
of these motions have been referred to the undersigned.
With regard to the Motion (Application) to Proceed in Forma Pauperis, the Court finds
that the Plaintiff is a licensed attorney, presumably with the ability to be employed and earn
income sufficient to earn and pay the filing fee for an appeal.

Plaintiff states, without

explanation, that he is currently unemployed, but notes that he previously worked part time at
McDonald’s and earned approximately $250 per month. Plaintiff does not explain why he left
the position at McDonald’s or why he was only working approximately 34 hours per month at
this position.1
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$250.00 divided by $7.25 (Federal Minimum Wage, see www.dol.gov/whd/regs/compliance) yields 34.5 hours per
month.

The Court, however, has not based its decision on Plaintiff’s underemployment. Instead,
the Court finds that the Plaintiff has the ability to prepay the filing fees because: (1) he has rental
income of over $1200 per month; (2) he has $1000 in cash in a checking account; and (3) his
monthly expenses of $1000 are partially paid by his wife and do not exceed his income.
In sum, the Court has reviewed the application as a whole, and the Court finds that the
Plaintiff can pay the $450.00 appellate filing fee required by the Court of Appeals. The Court
finds that the Plaintiff has not demonstrated his “inability to pay or to give security for fees and
costs.” Fed. R. App. P. 24(a)(1)(A). Accordingly, the Motion (Application) to Proceed in
Forma Pauperis [Doc. 31] is DENIED.
In his Motion to Waive Appeal Bond, Plaintiff moves the Court to suspend payment of an
appeal bond. Pursuant to Rule 7 of the Federal Rules of Appellate Procedure, the “district court
may require an appellant to file a bond or provide security in any form and amount necessary to
ensure payment of costs on appeal.” Neither District Judge Phillips nor the undersigned have
indicated that the Plaintiff would be required to post a bond for costs on appeal. There is no
bond to be waived in this case, and accordingly, the Motion to Waive Appeal Bond [Doc. 30] is
DENIED AS MOOT.
In sum, the Motion (Application) to Proceed in Forma Pauperis [Doc. 31] is DENIED,
and the Motion to Waive Appeal Bond [Doc. 30] is DENIED AS MOOT.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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