Braden v. Tennessee Department of Corrections

Filing 14

ORDER CERTIFYING THE APPEAL IS NOT TAKEN IN GOOD FAITH AND DIRECTING PLAINTIFF TO FILE A TRUST ACCOUNT STATEMENT OR PAY THE FULL $505 APPELLATE FILING FEE. Signed by Judge James D. Todd on 11/22/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DERRICK RANARD BRADEN,
Plaintiff,
VS.
DERRICK SCHOFIELD, ET AL.,
Defendants.

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No. 16-2358-JDT-tmp

ORDER CERTIFYING THE APPEAL IS NOT TAKEN IN GOOD FAITH
AND DIRECTING PLAINTIFF TO FILE A TRUST ACCOUNT
STATEMENT OR PAY THE FULL $505 APPELLATE FILING FEE

Plaintiff Derrick Ranard Braden, a prisoner acting pro se, filed a civil complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On August 17, 2016, the Court dismissed the
complaint without prejudice for failure to either pay the filing fee or submit sufficient
financial documentation to support an application to proceed in forma pauperis (ECF No.
10); judgment was entered on August 18, 2016 (ECF No. 11). On November 7, 2016,
Plaintiff filed a notice of appeal (ECF No. 12) and a motion for leave to appeal in forma
pauperis (ECF No. 13).
As it appears to the Court that the appeal is both untimely and frivolous, it is
CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure
24(a), that it is not taken in good faith.

Generally, a plaintiff granted leave to proceed in forma pauperis is not required to pay
filing fees. 28 U.S.C. § 1915(a)(1). Because Plaintiff is a prisoner, however, he must pay
the entire $505 appellate filing fee, although he may be able to pay the fee in installments
pursuant to 28 U.S.C. § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th
Cir. 2013). In order to take advantage of the installment procedures, a prisoner plaintiff must
submit, along with the notice of appeal, an in forma pauperis affidavit and inmate trust
account statement. Id. at 610; 28 U.S.C. § 1915(a)(2).
In this case, although Plaintiff submitted an in forma pauperis affidavit, he has not
submitted a copy of his trust account statement for the six months immediately preceding the
notice of appeal.1 Therefore, at the present time, he is not eligible to take advantage of the
installment procedures of § 1915(b). Plaintiff is, however, liable to the Court for the full
$505 appellate filing fee, which accrued at the moment the notice of appeal was filed.
Accordingly, Plaintiff is hereby ORDERED to submit either the full $505 appellate filing fee
or a copy of his trust account statement for the last six months within thirty days after the
date of this order.2 If Plaintiff needs additional time to file his trust account statement, he
may request one thirty-day extension of time from this Court.
1

Attached to the notice of appeal are several exhibits, including one page of Plaintiff’s
trust account statement showing transactions in June and July 2016. (ECF No. 12-1 at PageID
124.) This document is not sufficient compliance with the requirement that Plaintiff submit a
copy of his trust account statement for the six-month period immediately preceding the filing of
the notice of appeal. See § 1915(a)(2).
2

Plaintiff does not need to file another in forma pauperis affidavit.
2

If Plaintiff fails to file the trust account statement in a timely manner, the Court will
deny leave to appeal in forma pauperis and assess the entire $505 filing fee from his trust
account without regard to the installment procedures, and the Sixth Circuit may dismiss the
appeal for failure to prosecute. However, if Plaintiff timely submits the trust account
statement and the Court finds that he is indigent, then the Court will grant leave to appeal in
forma pauperis and assess the filing fee in accordance with the installment procedures of 28
U.S.C. § 1915(b).
The Clerk is directed to notify the Sixth Circuit of the entry of this order.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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