United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
case is before the court on pro se plaintiff Bryan Richard
Howard's Motion to Appeal in Forma Pauperis (Doc. 113).
Mr. Howard asks the court to allow him to proceed on his
appeal “without prepayment of fees and costs or
security.” Doc. 113 at 1. For reasons explained below,
the court denies Mr. Howard's motion without prejudice to
Howard brought a Bivens action against defendants
Ray Rodgers, Doug Wettlauffer, Paul Leonhard, Roger Crooks,
and Kimberly Maurelli. Mr. Howard's Amended Complaint
alleged that defendant Ray Rodgers sexually assaulted him,
and the other defendants failed to protect Mr. Howard from
this assault. See Doc. 94 at 6-12.
26, 2018, the court granted defendants' Motion for
Summary Judgment. Doc. 100. Defendants had raised Mr.
Howard's failure to exhaust his administrative remedies
as an affirmative defense to his claims. The court held that
the summary judgment facts established Mr. Howard had failed
to assert an administrative complaint alleging the same facts
as Mr. Howard's Complaint. Mr. Howard thus had not
exhausted his administrative remedies, as the Prison
Litigation Reform Act of 1995 (“PLRA”) requires.
Based on his failure to exhaust, the court granted summary
judgment against Mr. Howard's claim. Mr. Howard then
filed a Motion for Reconsideration (Doc. 104) asking the
court to revisit the summary judgment decision memorialized
in the June 26, 2018, Order. The court denied Mr.
Howard's Motion for Reconsideration. Doc. 109.
Mr. Howard has filed a Motion to Appeal in Forma Pauperis.
Doc. 113. He has filed a Notice of Appeal (Doc. 110), but he
explains in his motion that he cannot afford to prepay the
$505 filing fee for initiating an appeal to the Tenth Circuit
($5.00 filing fee and $500.00 docket fee).
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). Also,
“[a] prisoner seeking to bring a civil action or appeal
a judgment in a civil action or proceeding without prepayment
of fees or security therefor, in addition to filing the
affidavit filed under paragraph (1), shall submit a certified
copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period
immediately preceding the filing of the complaint or notice
of appeal, obtained from the appropriate official of each
prison at which the prisoner is or was confined.”
Id. at § 1915(a)(2).
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
Howard did not tender a filing fee when he filed his Notice
of Appeal (Doc. 110). But, he filed his Motion to Appeal in
Forma Pauperis about one month after he filed his Notice of
Appeal. His motion contains an affidavit attesting that,
“because of [his] poverty, [Mr. Howard] cannot prepay
the docket fees of [his] appeal or post a bond for
them.” Doc. 113-1 at 1. He also attests that he
“believe[s] [he is] entitled to redress.”
Id. Also, Mr. Howard attached to his motion an
“inmate trust account statement” (Doc. 113-2)
that lists his inmate account transactions beginning January
8, 2019, until March 1, 2019. Mr. Howard's affidavit also
asserts that his employment in prison pays him $25 per month,
and that he receives an average of $50 per month from family
Mr. Howard's motion does not provide the court with
inmate account statements for the six-month period preceding
the filing of his Notice of Appeal, which he docketed on
February 15, 2019. See Doc. 110. The inmate account
statements that Mr. Howard has provided only date back to
January 8, 2019, just over a month before he filed his Notice
of Appeal. Since Mr. Howard has neglected to provide
information that the court must use to determine whether Mr.
Howard is “eligib[le] to make partial payments of the
full fee, ” 10th Cir. R. 24.1, the court denies Mr.
Howard's motion without prejudice. He may refile it with
the appropriate supplemental documents.
IS THEREFORE ORDERED BY THE COURT THAT plaintiff
Bryan Richard Howard's Motion to Appeal in Forma Pauperis
(Doc. 113) is denied without prejudice to refiling with
appropriate supplemental documents.