Opinion
22-cv-2292-JWB-TJJ
03-15-2023
TODD GRAGG, Plaintiff, v. MAXIMUS, K.C., et al., Defendants.
MEMORANDUM AND ORDER
Teresa J. James,, U.S. Magistrate Judge
On November 29, 2022, the Court granted Defendants' motions to dismiss finding this Court lacked subject matter jurisdiction (ECF No. 33) and entered judgment in favor of Defendants on that same date (ECF No. 34). On February 14, 2023, the Court denied Plaintiff's motion for judgment as a matter of law and a request for findings of fact and conclusions of law (ECF No. 40). Plaintiff filed a Notice of Appeal (ECF No. 44) on March 7, 2023. This matter is before the Court on Plaintiff's Motion to Proceed Without Prepayment of Fees (ECF No. 47) and his Affidavit of Financial Status (ECF No. 47-1) attached in support. The Court construes Plaintiff's filing as a motion for leave to appeal in forma pauperis under Fed. R. App. P. 24(a)(1). Plaintiff commenced this action by paying the filing fee and has not previously sought or been granted leave to proceed in forma pauperis so Fed. R. App. P. 24(a)(3) is not applicable.
Fed. R. App. P. 24(a)(3) permits a party who was permitted to proceed in forma pauperis in the district-court action to “proceed on appeal in forma pauperis without further authorization” unless (A) the district court certifies the appeal is not taken in good faith or finds the party not otherwise entitled to proceed in forma pauperis, or (B) a statute provides otherwise.
Under Federal Rule of Appellate Procedure 24(a)(1), a party who seeks to appeal in forma pauperis must file a motion with the district court and attach an affidavit that “(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal.” Appellate Form 4 is an Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis and requires a party to provide specific and detailed information, including financial information. Likewise, under 28 U.S.C. § 1915(a)(1), a party seeking leave to proceed without prepayment of fees must submit an affidavit which states “the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.”
Appellate Form 4 (Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis) of the Appendix of Forms is available on the United States Court's website at https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/appellate-rules-forms.
See Adkins v. Schnurr, No. 18-3153-KHV, 2020 WL 569827, at *1 (D. Kan. Feb. 5, 2020) (denying without prejudice petitioner's application for leave to appeal in forma pauperis for failure to satisfy the requirements of Fed. R. App. P. 24(a)(1) and 28 U.S.C. § 1915(a)(1)).
Plaintiff's Motion and Affidavit do not satisfy the requirements of Fed. R. App. P. 24(a)(1). Although Plaintiff states that he is financially unable to pay and includes information concerning his current financial status, he does not provide an affidavit which contains the level of detail Form 4 requires and does not recite the issues he intends to raise in his appeal. It appears that Plaintiff has followed the District of Kansas's procedure for requesting in forma pauperis status instead of the procedure set forth in Fed. R. App. P. 24(a)(1). The Court therefore denies Plaintiff's motion without prejudice to refiling a motion and affidavit within the next thirty (30) days containing the information required by Fed. R. App. P. 24(a)(1) and Form 4.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Proceed Without Prepayment of Fees (ECF No. 47) is DENIED WITHOUT PREJUDICE to refiling a motion for leave to proceed on appeal in forma pauperis and affidavit that include the information required by Fed. R. App. P. 24(a)(1) and Form 4. Plaintiff's motion and affidavit must be filed within thirty (30) days of the date of this Order.
IT IS FURTHER ORDERED that a copy of Form 4 of the Appendix of Forms shall be mailed along with this order to Plaintiff.
IT IS SO ORDERED.