Howard v. Langston et al, No. 6:2012cv00250 - Document 34 (E.D. Tex. 2012)

Court Description: MEMORANDUM AND OPINION, ORDER denying 31 MOTION for Leave to Appeal in forma pauperis filed by Donald R Howard. The Appellant shall pay the remaining $449.84 filing fee in periodic installments as funds become available. Signed by Magistrate Judge Judith K. Guthrie on 10/28/2012. (gsg)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION DONALD R. HOWARD, #1397355 § VS. § DAVID LANGSTON, ET AL § CIVIL ACTION NO. 6:12cv250 MEMORANDUM OPINION AND ORDER DENYING APPELLANT S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL Came on for consideration, Appellant Donald R. Howard s motion for leave to proceed in forma pauperis on appeal (docket entry #31) from the dismissal of his civil rights lawsuit and entry of judgment against him. Title 28 U.S.C. § 1915(a)(3) states that leave to proceed on appeal in forma pauperis shall be denied if the district court determines that the appeal is not taken in good faith (i.e., if the appeal fails to present a nonfrivolous issue). Coppedge v. U.S., 369 U.S. 438, 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962); United States v. Benitez, 405 Fed. Appx. 930, 930 (5th Cir. 2010) (per curiam). An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); United States v. Pineda-Arrellano, 492 F.3d 624, 630 (5th Cir. 2007), cert. denied, 552 U.S. 1103, 128 S. Ct. 872, 169 L. Ed. 2d 737 (2008). Similarly, under Fed. R. App. P. 24(a)(3)(A), the Appellant is ineligible for in forma pauperis status if the Court certifies that the appeal is not taken in good faith. If the district court finds no legal points arguable on the merits, then an appeal is not taken in good faith. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), reh g denied, 719 F.2d 787 5th Cir. 1983); see also Wai Leung Chu v. United States, 353 Fed. Appx. 952, 953 (5th Cir. 2009) (per curiam); Groden v. Kizzia, 354 Fed. Appx. 36, 36 (5th Cir. 2009) (per curiam); Walton v. Valdez, 340 Fed. Appx. 954, 955 (5th Cir. 2009) (per curiam). For the reasons stated in the Memorandum Opinion and Order of Dismissal (docket entry #20) and the Memorandum Opinion and Order on Plaintiff s Motion for Reconsideration (docket 1 entry #28), the Court certifies that the Appellant s appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997) (to comply with Rule 24 and to inform the Court of Appeals of the reasons for its certification, a district court may incorporate by reference its order dismissing an appellant s claims). It is accordingly ORDERED that the motion for leave to proceed in forma pauperis on appeal (docket entry #31) is DENIED. Although this Court has certified that the appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3)(A), the Appellant may challenge this finding pursuant to Baugh v. Taylor, by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of Court, U.S. Court of Appeals for the Fifth Circuit, within 30 days of this order. Baugh, 117 F.3d at 202. The cost to file a motion to proceed on appeal with the Fifth Circuit is calculated below, and if the Appellant moves to proceed on appeal in forma pauperis, the prison authorities will be directed to collect the fees as calculated in this order. Donald R. Howard, #1397355, submitted an application with a trust fund account data sheet stating he received average deposits of $25.82 over the previous six months and carried an average balance of $4.64 over the previous six months in his trust account, which carries a current balance of $0.00. Therefore, he will be assessed an initial partial filing fee of $5.16. Nonetheless, that does not relieve the Plaintiff of the responsibility of paying the balance of the $455.00 filing fee or any partial fees connected therewith, unless and until the Court directs otherwise, regardless of the disposition of the appeal. The Appellant shall pay the remaining $449.84 filing fee in periodic installments as funds become available. The Appellant is required to make payments of 20% of the preceding month s income credited to his inmate trust fund account until Appellant has paid the total filing fee of $455.00. The agency having custody of the prisoner shall collect this amount from the trust fund account or institutional equivalent, when funds are available and when permitted by 28 U.S.C. § 2 1915(b)(2), and forward it to the clerk of the district court. If the Appellant moves to proceed on appeal in forma pauperis, the clerk shall mail a copy of this order to the inmate accounting office or other person(s) or entity with responsibility for collecting and remitting to the district court interim filing payments on behalf of prisoners, as designated by the facility in which the prisoner is currently or subsequently confined. So ORDERED and SIGNED this 28 day of October, 2012. ____________________________ JUDITH K. GUTHRIE UNITED STATES MAGISTRATE JUDGE 3

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