Rice v. Oliver et al

Filing 92

MEMORANDUM OPINION AND ORDER that the 90 motion for leave to proceed in forma pauperis on appeal is denied. Signed by Magistrate Judge Judith K. Guthrie on 3/7/12. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ALONZO DEMONT RICE, #479048

§

VS.

§

GREGORY OLIVER, ET AL.

§

CIVIL ACTION NO. 9:09cv120

MEMORANDUM OPINION AND ORDER
DENYING APPELLANT’S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
Came on for consideration, Appellant Alonzo Demont Rice’s motion for leave to proceed
in forma pauperis on appeal (docket entry #90) from the dismissal of his civil rights lawsuit and
entry of judgment against him. Title 28 U.S.C. § 1915(a)(3) states that leave to proceed on appeal
in forma pauperis shall be denied if the district court determines that the appeal is not taken in “good
faith” (i.e., if the appeal fails to present a nonfrivolous issue). Coppedge v. U.S., 369 U.S. 438, 445,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962); United States v. Benitez, 405 Fed. Appx. 930, 930 (5th Cir.
2010) (per curiam). An action is frivolous where there is no arguable legal or factual basis for the
claim. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); United
States v. Pineda-Arrellano, 492 F.3d 624, 630 (5th Cir. 2007), cert. denied, 552 U.S. 1103, 128 S.
Ct. 872, 169 L. Ed. 2d 737 (2008). Similarly, under Fed. R. App. P. 24(a)(3)(A), the Appellant is
ineligible for in forma pauperis status if the Court certifies that the appeal is not taken in “good
faith.” If the district court finds no “legal points arguable on the merits,” then an appeal is not taken
in “good faith.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), reh’g denied, 719 F.2d 787 5th
Cir. 1983); see also Wai Leung Chu v. United States, 353 Fed. Appx. 952, 953 (5th Cir. 2009) (per
curiam); Groden v. Kizzia, 354 Fed. Appx. 36, 36 (5th Cir. 2009) (per curiam); Walton v. Valdez,
340 Fed. Appx. 954, 955 (5th Cir. 2009) (per curiam).
For the reasons stated in the Memorandum Opinion and Order of Dismissal (docket entry
#87), the Court certifies that the Appellant’s appeal is not taken in good faith. 28 U.S.C. §
1

1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997)
(to comply with Rule 24 and to inform the Court of Appeals of the reasons for its certification, a
district court may incorporate by reference its order dismissing an appellant’s claims). It is
accordingly
ORDERED that the motion for leave to proceed in forma pauperis on appeal (docket entry
#90) is DENIED.
Although this Court has certified that the appeal is not taken in good faith under 28 U.S.C.
§ 1915(a)(3) and Fed. R. App. P. 24(a)(3)(A), the Appellant may challenge this finding pursuant to
Baugh v. Taylor, by filing a separate motion to proceed in forma pauperis on appeal with the Clerk
of Court, U.S. Court of Appeals for the Fifth Circuit, within 30 days of this order. Baugh, 117 F.3d
at 202. The cost to file a motion to proceed on appeal with the Fifth Circuit is calculated below, and
if the Appellant moves to proceed on appeal in forma pauperis, the prison authorities will be directed
to collect the fees as calculated in this order.
Alonzo Demont Rice, #479048, submitted an application stating he received a deposit of
$50.00 over the previous six months in his trust account, which carries a current balance of $50.00.
He did not otherwise submit a trust fund account data sheet. Therefore, he will be assessed an initial
partial filing fee of $1.67. Nonetheless, that does not relieve the Plaintiff of the responsibility of
paying the balance of the $455.00 filing fee or any partial fees connected therewith, unless and until
the Court directs otherwise, regardless of the disposition of the appeal.
The Appellant shall pay the remaining $453.33 filing fee in periodic installments as funds
become available. The Appellant is required to make payments of 20% of the preceding month’s
income credited to his inmate trust fund account until Appellant has paid the total filing fee of
$455.00. The agency having custody of the prisoner shall collect this amount from the trust fund
account or institutional equivalent, when funds are available and when permitted by 28 U.S.C. §
1915(b)(2), and forward it to the clerk of the district court.
If the Appellant moves to proceed on appeal in forma pauperis, the clerk shall mail a copy
2

of this order to the inmate accounting office or other person(s) or entity with responsibility for
collecting and remitting to the district court interim filing payments on behalf of prisoners, as
designated by the facility in which the prisoner is currently or subsequently confined.
So ORDERED and SIGNED this 7

day of March, 2012.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

3