United States District Court, D. Kansas
GLENN A. HEATH, Plaintiff,
JOE NORWOOD, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff Glenn A. Heath's
Motion for Leave to Appeal in forma pauperis (Doc. 29).
Because the court finds that Mr. Heath has sufficient funds
to pay the filing fee, it denies his Motion.
Heath-an inmate at the Lansing Correctional Facility-filed a
Petition for Writ of Habeas Corpus with our court last year
(Doc. 1). Previously, Mr. Heath also filed a Motion for Leave
to Proceed in forma pauperis, which the court denied (Doc.
3). The court later considered and denied Mr. Heath's
Petition for Writ of Habeas Relief. Doc. 24. Concluding that
nothing suggested its ruling was debatable and no record
authority suggested the Tenth Circuit would resolve the case
differently, the court also declined to issue a certificate
of appealability. Id. at 19.
Heath now has appealed to the Tenth Circuit. He has not paid
the filing fee yet, and he seeks leave to appeal in forma
pauperis (Doc. 29). The filing fee for initiating an appeal
to the Tenth Circuit is $505.00 ($5.00 filing fee and $500.00
docket fee). Doc. 28 at 1. Mr. Heath represents that he does
not have an issue paying the required fees. Nevertheless, he
asks the court to defer the $505.00 fee until the Circuit
rules on his appeal, or, alternatively, to let him pay the
fee in installments. Doc. 29 at 2.
in forma pauperis is governed by 28 U.S.C. § 1915.
Section 1915(a)(1) provides that “any court of the
United States may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal,
or appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes
a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1).
the statute also provides that all prisoners bringing civil
actions or appeals must pay the full amount of filing and
docketing fees. Id. at § 1915(b)(1). So,
“if a prisoner tenders less than full fees when a
notice of appeal is filed, the district court shall obtain
sufficient information to determine the prisoner's
eligibility to make partial payments of the full fee, and, if
the prisoner is eligible, assess a partial filing fee under
the Act.” 10th Cir. R. 24.1. In short, the court will
authorize a partial filing fee only if it is satisfied that
the applicant is unable to pay the requisite fees
Heath did not tender the filing fee when he filed his Notice
of Appeal. But, he did file a Motion for Leave to Appeal in
forma pauperis with this court within 30 days. See
Fed. R. App. P. R. 24(a)(1). Mr. Heath concedes that he is
willing to pay the required fee for his appeal. Doc. 29 at 2.
And, he represents to the court that private industry employs
him in prison and that he receives monthly pay for his work.
Id. at 2. In short, the court is not satisfied that
Mr. Heath could not pay his fee immediately.
the court's review of Mr. Heath's “Inmate
Account Statement” solidifies this conclusion. When the
court permits an inmate to proceed in forma pauperis, this
decision merely entitles the applicant to pay the filing fee
in installment payments deducted automatically from the
inmate's trust fund account. 28 U.S.C. § 1915(b)(2).
But, the applicant must still pay an initial partial filing
fee: Section 1915(b)(1) requires the court to assess an
initial partial filing fee of 20% of the greater of the
average monthly deposits or average monthly balance in the
prisoner's account for the six months immediately
preceding the filing date of a civil action. Id. at
Heath has attached his “Inmate Account Statement”
to his application. It shows that Mr. Heath's average
monthly deposit during the relevant period was $1, 241.61,
and his average available cash balance was $2, 741.08.
Id. at 3. Twenty percent of $2, 741.08-the greater
of the two numbers-is $548.22. In short, Mr. Heath's
inmate account demonstrates that he has the financial
wherewithal to pay the filing fee. The court thus declines to
grant Mr. Heath's Motion.
court directs the Clerk of this Court to notify the Tenth
Circuit of this decision. Fed. R. App. P. R. 24(a)(4). Also,
the court directs Mr. Heath to Fed. R. App. P. R. 24(a)(5),
which allows a party to file a motion to proceed on appeal in
forma pauperis in the Court of Appeals within 30 days of
filing of an order like this one. Fed. R. App. P. R.
24(a)(5). Should Mr. Heath choose to pursue this option,
“[t]he motion must include a copy of the affidavit
filed in the district court and the district court's
statement of reasons for its action.” Id.