Opinion
Case No. 12-23459-CIV-LENARD/O'SULLIVAN
08-28-2018
U.S. COMMODITY FUTURES TRADING COMMISSION, Plaintiff, v. MICHAEL ALCOCER and INOVATRADE, INC., Defendants.
ORDER
THIS MATTER came before the Court on the Motion for Reconsideration [of] Motion to Proceed in Forma Pauperis (DE# 79, 8/24/18) filed pro se by Michael Alcocer (hereinafter "defendant").
ANALYSIS
The undersigned initially denied the defendant's request to proceed in forma pauperis on appeal for failure to comply with the requirements of Title 28, United States Code, Section 1915(a)(1). See Order (DE# 76 at 4, 8/15/18) (stating "[n]owhere in the defendant's Affidavit . . . does the defendant "state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress" as required by section 1915(a)(1) and Fed. R. App. P. 24 (a)(1)(B)-(C).").
The defendant has since filed the instant Motion for Reconsideration [of] Motion to Proceed in Forma Pauperis (DE# 79, 8/24/18). The instant motion includes a declaration from the defendant wherein he sets forth the grounds for his appeal. See Declaration of Michael John Alcocer-Roa (Affidavit) (DE# 79 at 3-5, 8/24/18). The defendant previously filed an Affidavit Accompanying Motion for Permission to Appeal in Forma Pauperis (DE# 71, 8/14/18) which included a list of the defendant's sources of income, employment history, assets and monthly expenses. The defendant also filed an inmate account statement which includes deposits, withdrawals and average daily balance for a six-month period. See Motion to Supplemental [sic] Defendant's Motion to Proceed in Forma Pauperis (DE# 73, 8/14/18).
The defendant has not paid the $505.00 appellate filing fee with the Clerk, but has filed the instant Motion along with the aforementioned supporting documentation. Having reviewed the defendant's filings, the undersigned concludes that the defendant has met the requirements of section 1915(a) and is therefore entitled to proceed in forma pauperis on appeal.
Section 1915(b)(4) states that "[i]n no event shall a prisoner be prohibited from bringing a civil action or 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). Section 1915(b) further provides that "if a prisoner . . . files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). The Court must assess 20% of the greater of the average monthly deposits to the prisoner's account or the average monthly balance in the prisoner's account for the six month period immediately preceding the notice of appeal. Id. Thereafter, the prisoner must make payments of 20% of the preceding month's income credited to his or her account. The agency having custody of the prisoner must forward payments from the prisoner's account to the Clerk of the Court each time the amount in the account exceeds $10.00 until the filing fees are paid. 28 U.S.C. § 1915(b)(2).
CONCLUSION
In the instant case, the defendant has filed documentation to establish that he cannot at present pay the filing fee and has otherwise complied with the statutory requirements for proceeding in forma pauperis. Accordingly, it is
ORDERED AND ADJUDGED as follows:
1. The Motion for Reconsideration [of] Motion to Proceed in Forma Pauperis (DE# 79, 8/24/18) is GRANTED.
2. The defendant owes the United States a debt of $505.00 which must be paid to the Clerk of the Court as funds become available.
3. The prison having custody of the defendant must make payments from the prisoner's account to the Clerk of this Court each time the amount in the account exceeds $10.00 until the full filing fee of $505.00 is paid.
DONE AND ORDERED in Chambers at Miami, Florida this 28th day of August, 2018.
/s/_________
JOHN J. O'SULLIVAN
UNITED STATES MAGISTRATE JUDGE Copies provided to:
United States District Judge Lenard
All counsel of record Copies provided by mail to:
Michael Alcocer
63126-018
Coleman Low / Unit C-2
Federal Correctional Complex
Inmate Mail/Parcels
Post Office Box 1031
Coleman, FL 33521
PRO SE