Barrie v. Streeval, No. 0:2018cv00054 - Document 10 (E.D. Ky. 2018)

Court Description: MEMORANDUM OPINION & ORDER: 1) Barrie's 8 MOTION for Leave to Appeal in forma pauperis is GRANTED IN PART. Within 28 days Barrie shall pay $54.05 to the Clerk of Courts in full satisfaction of the appellate filing fee; 2) The Clerk of Courts shall forward a copy of this Order to the Clerk of Courts of Appeals for the Sixth Circuit.. Signed by Judge Henry R. Wilhoit, Jr on 6/4/18.(JLS)cc: COR, Barrie via US Mail, 6CCA
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Barrie v. Streeval Doc. 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION at ASHLAND ALIMAMY BARRIE, ) ) ) ) ) Petitioner, V. Civil No. 0: 18-54-HRW ) J.C. STREEVAL, Warden, ) ) ) Respondent. MEMORANDUM OPINION AND ORDER *** *** *** *** Petitioner Alimamy Barrie has filed a Notice of Appeal [D.E. No. 6] and a motion to waive payment of the appellate filing fee. [D.E. No. 8] The filing fee provisions of the Prison Litigation Reform Act, 28 U.S.C. § 1915(a)(2), (b), do not apply to habeas corpus proceedings. Kincade v. Sparkman, 117 F. 3d 949, 951-52 (6th Cir. 1997). See also Graham v. US. Parole Comm 'n, No. 96-6725, 1997 WL 778515, at *2 (6th Cir. Dec. 8, 1997) (noting that the fee provisions of the PLRA do not apply to habeas corpus petitions filed under Section 2241 ); Blair-Bey v. Quick, 151F.3d1036, 1040-41 (D.C. Cir. 1998) (same). The Court therefore applies the traditional discretion afforded to pauper determinations under 28 U.S.C. § 1915(a). Walker v. O'Brien, 216 F.3d 626, 638 n.5 (7th Cir. 2000) (en bane) ("A court has it within its discretion to insist that litigants proceeding IFP in non-PLRA cases must nonetheless pay a fee 1 Dockets.Justia.com commensurate with their ability to do so."). Granting pauper status is therefore not an all-or-nothing proposition: whether before the trial court or on appeal, a partial filing fee may be required where appropriate. See In re Epps, 888 F.2d 964, 967 (2d Cir. 1989) ("The discretion to waive prepayment of filing fees, conferred upon district judges by Section 1915, need not be exercised on an all-or-nothing basis. The power to waive the entire fee includes the power to waive a portion of it."); Collier v. Tatum, 722 F.2d 653, 654-55 (11th Cir. 1983) (holding in an appeal decided before enactment of the PLRA that "a prisoner-plaintiff may be required to pay a partial filing fee for an appeal."). Here, the financial documents accompanying Barrie's motion indicate that Barrie has sufficient funds to pay a portion of the $505.00 appellate filing fee. [D.E. No. 9] However, the Court finds that requiring Barrie to pay the whole filing fee would be unduly burdensome in light of his limited financial resources. Barrie must therefore pay $54.05 in full satisfaction of the appellate filing fee within 28 days from the date of this Order. Olivares v. Marshall, 59 F.3d 109, 111 (9th Cir. 1995)(citing Clarkv. Ocean Brand Tuna, 974 F.2d 48, 50 (6th Cir. 1992)). Accordingly, IT IS ORDERED that: 1. Barrie's motion to waive payment of the appellate filing fee [D.E. No. 8] is GRANTED IN PART. Within 28 DAYS, Barrie shall pay $54.05 to the Clerk of the Court in full satisfaction of the appellate filing fee. 2 2. The Clerk of the Court shall forward a copy of this Order to the Clerk of the Court of Appeals for the Sixth Circuit. JI~ This7_·day of June, 2018. Signed By: ttancy B. Wilhoit. Jr. United lt1t11 Dl1trlct Judge 3