United States District Court, D. Minnesota
Michael J. Davis United States District Judge
Richard Angelo McFee has filed a Notice of Appeal (Dkt. No.
11) challenging this action's dismissal, but he has not
paid the filing fee for this appeal. Instead, he has filed a
Motion and Affidavit for Permission to Appeal In Forma
Pauperis (Dkt. No. 12) (IFP Application). The IFP Application
is now before the Court and must be addressed before any
other action is taken in this appeal.
McFee is a prisoner, the IFP Application is subject to the
requirements of 28 U.S.C. § 1915(b). This statute
(1) Notwithstanding subsection (a), if a prisoner . . . files
an appeal in forma pauperis, the prisoner shall be required
to pay the full amount of a filing fee. The court shall
assess and, when funds exist, collect, as a partial payment
of any court fees required by law, an initial partial filing
fee of 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 . . . .
(2) 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.
(3) In no event shall the filing fee collected exceed the
amount of fees permitted by statute for the commencement of a
civil action . . . .
(4) In no event shall a prisoner be prohibited from . . .
appealing a civil . . . judgment for the reason that the
prisoner has no assets and no means by which to pay the
initial partial filing fee.
to this statute-part of the Prison Litigation Reform Act
(PLRA)- prisoners who are granted IFP status are not
excused from paying the appellate filing fee altogether, as
is the case for nonprisoner IFP litigants. Instead, a
prisoner granted IFP status is merely granted permission to
pay the filing fee in installments, rather than paying the
entire amount in advance. Ashley v. Dilworth, 147
F.3d 715, 716 (8th Cir. 1998) (“The purpose of the
[PLRA] was to require all prisoner-litigants to pay filing
fees in full, with the only issue being whether the inmate
pays the entire filing fee at the initiation of the
proceeding or in installments over a period of time.”)
(citing Henderson v. Norris, 129 F.3d 481,
483 (8th Cir. 1997)). Section 1915(b)(1) requires prisoner
IFP applicants to pay an initial partial filing fee at the
outset of an appeal, and § 1915(b)(2) requires that the
remaining balance be paid in installments through regular
deductions from the prisoner's trust account.
case, the materials accompanying the IFP Application show
that the amount of McFee's average monthly deposits
during the preceding six-month period was $219.10, while his
average balance during the same period was $30.00.
See Certificate of Authorized Prison Official (Dkt.
No. 12-1). Because the deposits amount exceeds the balance
amount, McFee's initial partial filing fee for this
appeal, under the formula prescribed by 28 U.S.C. §
1915(b)(1), will be 20 percent of the average deposits
amount, or $43.82. This appeal will not go forward until
McFee's initial partial filing fee of $43.82 has been
paid in full. If McFee elects to pursue this action through
payment of the $43.82 initial partial filing fee, the
entirety of the remaining balance of the $505.00 appellate
filing fee will have to be paid in later installments.
Prison officials will be ordered to deduct funds from
McFee's trust account and submit such funds to the Court,
as provided by § 1915(b)(2), regardless of whether McFee
succeeds in this appeal.
has also filed a “Reconsidered Motion for Appointment
of Counsel” (Dkt. No. 13) (Counsel Motion). It is
unclear whether McFee meant to file this document with this
Court or with the U.S. Court of Appeals for the Eighth
Circuit-it is captioned to this Court and was apparently sent
to this Court, but parts of the motion seem to address the
Eighth Circuit itself.
extent the motion is directed to this Court, it is denied. As
noted above, McFee has filed a notice of appeal in this
action. Such a filing “is an event of jurisdictional
significance-it confers jurisdiction on the court of appeals
and divests the district court of its control over those
aspects of the case involved in the appeal.” Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982);
see also, e.g., United States v. Webster,
797 F.3d 531, 537 (8th Cir. 2015) (quoting Griggs).
In the Court's view, whether McFee is represented by
counsel on appeal is an “aspect of the case involved
in the appeal, ” so this court lacks jurisdiction to
appoint McFee counsel on appeal. See, e.g., Order
1-2, Williams v. Sessions, No. 18-CV-2633 (DSD/SER)
(D. Minn. Mar. 25, 2019) (finding that filing of notice of
appeal divested district court of jurisdiction to consider
motion for appointment of counsel); Gould v. Bertie
Cty., No. 5:14-CT-3066 (FL), 2015 WL 847396, at *2 (E.D.
N.C. Feb. 26, 2015) (same); Hawkins v. United
States, No. 05-CV-248 (WDS), 2011 WL 665475, at *1 (S.D.
Ill. Feb. 14, 2011) (same); Allen v. Howes, No.
05-10304, 2009 WL 1033319, at *1 (E.D. Mich. Apr. 16, 2009)
(same). The Court thus denies the Counsel Motion without
prejudice and informs McFee that he may refile it with the
although the Court remains satisfied that this action was
properly dismissed, McFee's current appeal is not
“frivolous” as the U.S. Supreme Court has defined
the term. Accordingly, McFee's appeal is found to be
taken in good faith for purposes of 28 U.S.C. §
1915(a)(3) and Federal Rule of Appellate Procedure ...