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Bui v. Hennepin County Economic Assistance: US District Court : CIVIL PROCEDURE - In Forma Pauperis granted; order was proper but appeal not legally frivolous

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MICHAEL JOHN BUI,
Plaintiff,
v.
HENNEPIN COUNTY ECONOMIC
ASSISTANCE, JOSEPH P. YOUNG, and
GARY LARSON,
Defendants.
Civil No. 08-4689 (RHK/FLN)
ORDER
On August 25, 2008, the Court ordered that this case be dismissed for lack of subject
matter jurisdiction. (Docket No. 6.) Thereafter, Plaintiff filed a Notice of Appeal. (Docket No.
8.) Plaintiff did not pay the 5 filing fee for his appeal, but instead filed an application seeking
leave to proceed in forma pauperis, (IFP), on appeal. (Docket No. 9.) That IFP application is
now before the Court.
A litigant who seeks to be excused from paying the 5 filing fee for an appeal in a
federal case may apply for IFP status under 28 U.S.C. 1915. See also Fed. R. App. P. 24(a).
To qualify for IFP status, the litigant must demonstrate that he or she cannot afford to pay the full
filing fee. 28 U.S.C. 1915(a)(1). Even if a litigant is found to be indigent, however, IFP status
will be denied if the Court finds that the litigants appeal is not taken in good faith. 28 U.S.C.
1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context is judged by an objective
standard and not by the subjective beliefs of the appellant. Coppedge v. United States, 369 U.S.
438, 444-45 (1962). To determine whether an appeal is taken in good faith, the Court must
decide whether the claims to be decided on appeal are factually or legally frivolous. Id. An
2
appeal is frivolous, and therefore cannot be taken in good faith, where it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In this case, Plaintiffs IFP application shows that he is currently unemployed, he has no
income from any source, and he has no assets that could be used to pay the filing fee for his
appeal. Based on the information furnished by Plaintiffs IFP application, the Court finds that
he is financially eligible for IFP status on appeal.
Although the Court remains fully satisfied that this action was properly dismissed for lack
of jurisdiction, Plaintiffs appeal is not deemed to be legally frivolous, as that term has been
defined by the Supreme Court. Therefore, Plaintiffs appeal is found to be taken in good faith
for purposes of Fed. R. App. P. 24(a)(3), and his IFP application will be granted.
Based upon the foregoing, and all of the files, records and proceedings herein,
IT IS HEREBY ORDERED that:
Plaintiffs application to proceed in forma pauperis on appeal, (Docket No. 9), is
GRANTED.
Dated: November 26, 2008
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
 

 
 
 

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