Knode v. Erickson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ANDREW DWIGHT KNODE,
Plaintiff,
vs.
OFFICER JOSEPH ERICKSON, in his
individual and official capacity,
Defendant.
4:19-CV-04181-KES
SUA SPONTE ORDER RULING THAT
PLAINTIFF MAY PROCEED IN FORMA
PAUPERIS ON APPEAL
Plaintiff, Andrew Dwight Knode, filed a prisoner pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. Judgment was entered against Knode, and
he filed a motion to reconsider under Federal Rule of Civil Procedure 60(b),
which this court denied. Dockets 75, 78, 82. Knode appealed the judgment and
the denial of his Rule 60(b) motion. Dockets 84, 85. The Eighth Circuit Court of
Appeals dismissed Knode’s appeal as untimely. Docket 92. Knode then filed a
second motion to reconsider, which this court denied. Dockets 102, 104. Knode
appealed this court’s denial of his second motion to reconsider, and his appeal
is still pending. See Docket 107. Knode next filed a third motion to reconsider,
asking this court to reconsider a prior order denying his motion for either the
court or the defendants to pay for DNA testing. Docket 108. This court denied
Knode’s third motion to reconsider, which Knode now appeals. Dockets 112,
116. Knode has not provided the court with an updated prisoner trust account
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report. See Docket 116. This court must sua sponte rule on whether Knode
may proceed in forma pauperis.
Under the Prison Litigation Reform Act (the “Act”), 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) (per
curiam) (omission in original) (quoting In re Tyler, 110 F.3d 528, 529–30 (8th
Cir. 1997)). “[W]hen an inmate seeks pauper status, the only issue is whether
the inmate pays the entire fee at the initiation of the proceeding 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)).
In Henderson, the Eighth Circuit Court of Appeals set forth “the
procedure to be used to assess, calculate, and collect” appellate filing fees in
compliance with the Act. Id. 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 account; or
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(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).
Under Federal Rule of Appellate Procedure 24(a)(3), “[a] party who was
permitted to proceed in forma pauperis in the district-court action . . . may
proceed on appeal in forma pauperis without further authorization” unless the
appeal is not taken in good faith or the court “finds that the party is not
otherwise entitled to proceed in forma pauperis[.]” It appears that Knode’s
appeal is taken in good faith. Knode’s most recent prisoner trust account
report shows an average monthly deposit of $0.00 and an average monthly
balance of negative $159.86. Docket 5 at 1. The court finds that § 1915(b)(4)
applies and waives his initial partial filing fee.
Thus, it is ORDERED:
1. 	That this court sua sponte grants Knode leave to proceed in forma
pauperis on his appeal.
2. 	That 	the 	institution 	having 	custody 	of 	Knode 	is 	directed 	that
whenever the amount in Knode’s trust account, exclusive of funds
available 	to 	him 	in 	his 	frozen 	account, 	exceeds 	$10, 	monthly
payments that equal 20 percent of the funds credited to the account
the 	preceding 	month 	shall 	be 	forwarded 	to 	the 	United 	States
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District Court Clerk’s office pursuant to 28 U.S.C. § 1915(b)(2),
until the appellate filing fee of $505 is paid in full.
Dated September 13, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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