Opinion
Case No.: 5:06cv222/MCR/MD.
September 11, 2008
ORDER
Plaintiff was permitted to proceed in forma pauperis in this civil rights action in this district court. On July 14, 2008 the court granted defendants' motions for summary judgment and dismissed this case (without prejudice) for plaintiff's failure to comply with the exhaustion requirement of 42 U.S.C. § 1997e(a). (Doc. 80). Plaintiff filed a notice of appeal and a "Motion for Insolvancy [sic] Indigent," which the court construed as a motion for leave to appeal in forma pauperis. (Docs. 82 and 83, respectively). Plaintiff's motion was not accompanied by an affidavit. (Doc. 83). On August 7, 2008 this court entered an order denying the motion (without prejudice) due to plaintiff's failure to file an affidavit or trust fund account statement as required by the in forma pauperis statute, 28 U.S.C. § 1915(a). (Doc. 86).
Plaintiff has now filed a "Motion of Correction" indicating that because he is no longer a prisoner, he is not required to submit an affidavit or trust fund account statement. (Doc. 92). He admonishes the court to "get it right," accuses the court of being racially biased, and inquires if the undersigned has "mental problems." ( Id.).
Contrary to plaintiff's contention, even though he is no longer a prisoner he is still required by statute to submit "an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). Plaintiff's original application did not include an affidavit and was therefore properly denied. Plaintiff's present motion does not include an affidavit, and is therefore due to be denied.
Notwithstanding plaintiff's failure to comply with the statute, his request for permission to appeal in forma pauperis should be denied. Pursuant to 28 U.S.C. § 1915(a)(3) and Fed.R.App.P. 24(a), this court certifies that this appeal is not taken in good faith and plaintiff is not entitled to proceed in forma pauperis on appeal. The reasons for this court's decision are outlined in the Magistrate Judge's Report and Recommendation dated March 26, 2008 (doc. 78) and this Court's Order dated July 14, 2008 (doc. 80) which adopted and incorporated the recommendation.
Accordingly, it is ORDERED that plaintiff's "Motion of Correction," construed as a second motion for leave to appeal in forma pauperis (doc. 92) is DENIED, and plaintiff is directed to pay the full appellate filing fee of $455.00 within thirty (30) days from the date of this order.
DONE AND ORDERED.