Hymes v. Cain et al, No. 2:2007cv00502 - Document 25 (E.D. La. 2010)
Court Description: ORDER & REASONS denying pla's 24 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge Sarah S. Vance on 7/1/2010. (rll, ) Modified on 7/1/2010 to edit doc type (rll, ).
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Hymes v. Cain et al Doc. 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ALEXANDER HYMES CIVIL ACTION VERSUS NO: 07-502 BURL CAIN, WARDEN SECTION: R ORDER AND REASONS Before the Court is petitioner Alexander Hymes’s motion to appeal in forma pauperis. Hymes is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. He was convicted in state court on multiple counts of robbery and in May of 2001 was sentenced to a total term of imprisonment of 138 years. After unsuccessfully proceeding through the state appeal and post-conviction process, Hymes filed a habeas corpus petition asserting a number of claims. These claims included a challenge to the state-court’s jury instructions, a contention that his counsel was constitutionally ineffective, a Fourth Amendment claim, and an assertion that his Miranda rights were violated. The Magistrate Judge recommended that all of his claims be denied because they were either procedurally barred or frivolous.1 This Court adopted the Report and Recommendation and declined to issue 1 R. Doc. 16. 1 Dockets.Justia.com a certificate of appealability.2 Hymes now moves to proceed with his appeal in forma pauperis. A plaintiff may proceed in an appeal in forma pauperis when he “submits an affidavit that includes a statement . . . that [he] is unable to pay such fees or give security therefor.”3 A court may dismiss the case at any time if it determines that “the allegation of poverty is untrue, that the appeal is frivolous or malicious, that the appeal fails to state a claim on which relief may be granted, or that the appeal seeks monetary relief against a defendant who is immune from such relief.4 A district court has discretion in deciding whether to grant or deny a request to proceed in forma pauperis.5 The district court must inquire as to whether the costs of appeal would cause an undue financial hardship.6 2 R. Doc. 18, 22. 3 28 U.S.C. § 1915(a)(1). 4 Id. § 1915(e). 5 See Williams v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982) (per curiam); see also Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988) (“A district court has discretion, subject to review for abuse, to order a person to pay partial filing fees where the financial data suggests that the person may do so without suffering undue financial hardship.”). 6 Prows, 842 F.2d at 140; see also Walker v. Univ. of Tex. Med. Branch, No. 08-417, 2008 WL 4873733, at *1 (E.D. Tex. Oct. 30, 2008) (“The term ‘undue financial hardship’ is not defined and, therefore, is a flexible concept. However, a pragmatic rule of thumb contemplates that undue financial hardship results when prepayment of fees or costs would result in the applicant’s 2 Hymes’s motion to proceed in forma pauperis indicates that he had an average monthly balance of $185.78 for the six months prior to the motion’s filing. Hymes reports no other accounts or resources and he is not employed.7 This may suggest that he is unable to pay such fees. Hymes has not, however, indicated to the Court which issues he intends to pursue on appeal. A litigant who wishes to proceed in forma pauperis in the court of appeals is required to provide the district court with an affidavit that “states the issues that the party intends to present on appeal.”8 with these rules.9 Hymes did not comply Without a statement of the issues he intends to pursue on appeal, the Court cannot find that this appeal involves “legal points arguable on their merits (and therefore inability to pay for the ‘necessities of life.’”) (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)). 7 His motion is difficult to interpret. It indicates that he has a present account balance of “$78.05 (D)” and “$254.77 (S),” but does not explain the difference between these two figures. R. Doc. 24 at 3. In addition, there is reason to suspect that it is not entirely accurate. For example, it states that he is not presently incarcerated. Id. at 1. 8 FED. R. APP. P. 24(a)(1)(C); 28 U.S.C. § 1915(a)(1) (requiring affidavit to “state the nature of the . . . appeal and affiant’s belief that the person is entitled to redress”). 9 See, e.g., Smith v. School Bd. of Brevard County, No. 092033, 2010 WL 2026071, at *1 (M.D. Fla. May 20, 2010); United States v. One 2000 Land Rover, No. 07-382, 2008 WL 4809440, at *2 (S.D. Ala. Oct. 24, 2008); Wentworth v. Morgan, 2007 WL 710167, at *1 (E.D. Ky. Mar. 7, 2007); Carson v. AJN Holdings, No. 05-294, 2007 WL 843845, at *1-2 (E.D. Tenn. Mar. 19, 2007). 3 not frivolous).”10 III. CONCLUSION Accordingly, Hymes’s motion for leave to appeal in forma pauperis is DENIED. 1st New Orleans, Louisiana, this day of July, 2010. SARAH S. VANCE UNITED STATES DISTRICT JUDGE 10 Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); see also McQueen v. Evans, No. 95-50474, 1995 WL 17797616, at *2 (5th Cir. Oct. 11, 1995) (failure to present arguments for appeal in IFP motion constitutes abandonment of those arguments). 4
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