United States District Court, D. South Dakota, Southern Division
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Kevin Christopher Micheal Tripp, filed a pro se civil rights
lawsuit under 42 U.S.C. § 1983. Docket 1. This court
screened Tripp's amended complaint (Docket 8-1),
dismissed the complaint without prejudice, and assessed Tripp
with his first strike under 28 U.S.C. § 1915(g). Docket
10. Judgment was entered against Tripp and he filed a notice
of appeal. Dockets 11 and 12. Tripp moves for leave to
proceed in forma pauperis on appeal and filed his prisoner
trust account report. Dockets 13 and 14.
the Prison Litigation Reform Act (PLRA), a prisoner who
“files an appeal in forma pauperis . . . [is] required
to pay the full amount of a filing fee.” 28 U.S.C.
§ 1915(b)(1). This obligation arises “ ‘the
moment the prisoner . . . files an appeal.' ”
Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997) (quoting In re Tyler, 110 F.3d 528, 529-30
(8th Cir. 1997)). “ ‘When an inmate seeks pauper
status, the only issue is whether the inmate pays the entire
fee at the initiation of the proceedings or over a period of
time under an installment plan.' ” Id.
(quoting McGore v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997)). “[P]risoners who appeal judgments in
civil cases must sooner or later pay the appellate filing
fees in full.” Id. (citing Newlin v.
Helman, 123 F.3d 429, 432 (7th Cir. 1997)).
Henderson, the Eighth Circuit set forth “the
procedure to be used to assess, calculate, and collect”
appellate filing fees in compliance with the PLRA. 129 F.3d
at 483. First, the court must determine whether the appeal is
taken in good faith. Id. at 485 (citing 28 U.S.C.
§ 1915(a)(3)). Then, so long as the prisoner has
provided the court with a certified copy of his prisoner
trust account, the court must “calculate the initial
appellate partial filing fee as provided by §
1915(b)(1), or determine that the provisions of §
1915(b)(4) apply.” Id. The initial partial
filing fee must be 20 percent of the greater of:
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of
the complaint or notice of appeal.
28 U.S.C. § 1915(b)(1). Nonetheless, no prisoner will be
“prohibited from . . . appealing a civil or criminal
judgment for the reason that the prisoner has no assets and
no means by which to pay the initial partial filing
fee.” 28 U.S.C. § 1915(b)(4).
appears that Tripp's appeal is taken in good faith.
Further, he has provided the court with a report of his
prisoner trust account, which indicates that he has average
monthly deposits of $10.84 and an average monthly balance of
negative $28.59. Docket 14. Based on this
information, the court waives Tripp's initial filing fee.
order to pay his filing fee, Tripp must “make monthly
payments of 20 percent of the preceding month's income
credited to the prisoner's account.” 28 U.S.C.
§ 1915(b)(2). The statute places the burden on the
prisoner's institution to collect the additional monthly
payments and forward them to the Court as follows:
After payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). The installments will be
collected pursuant to this procedure.
clerk of the court will send a copy of this order to the
appropriate financial official at Tripp's institution.
Tripp will remain responsible for the entire filing fee, as
long as he is a prisoner, even if the case is dismissed at
some later time. See In re Tyler, 110 F.3d 528,
529B30 (8th Cir. 1997).
Tripp's motion to proceed in forma pauperis on appeal