Boston v. Metabank

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BENJAMIN BOSTON,
Petitioner,
vs.
METABANK, Aceflair Account,
Respondent.
4:21-CV-04218-KES
ORDER REQUIRING PETITIONER TO
SUBMIT A PRISONER TRUST
ACCOUNT REPORT
Petitioner, Benjamin Boston, an inmate at the DeKalb County Jail in
Decatur, Georgia, filed a pro se petition for a writ of mandamus under 28
U.S.C. § 1361. Docket 1. This court granted Boston leave to proceed in forma
pauperis and required him to pay an initial partial filing fee. Docket 5. This
court dismissed Boston’s case for failure to prosecute pursuant to Federal Rule
of Civil Procedure 4(m). Docket 13. Judgment was entered against Boston, and
he filed a notice of appeal. Dockets 14, 15. Now, Boston moves for leave to
proceed in forma pauperis on appeal. Docket 16.
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)
(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
Case 4:21-cv-04218-KES Document 18 Filed 07/19/22 Page 1 of 3 PageID #: <pageID>

2
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
(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).
Boston has not submitted a prisoner trust account report as required for
this court to assess his initial partial filing fee or waive that fee. See § 1915(b).
Boston must submit a prisoner trust account report by August 19, 2022, or
Case 4:21-cv-04218-KES Document 18 Filed 07/19/22 Page 2 of 3 PageID #: <pageID>

3
this court will deny Boston’s motion for leave to proceed in forma pauperis on
appeal and require Boston to pay the full $505 appellate filing fee.
Thus, it is ORDERED:
1. 	That Boston must submit a prisoner trust account report by August
19, 2022. If Boston does not submit a prisoner trust account report,
this court will deny his motion for leave to proceed in forma pauperis
on appeal and require him to pay the full $505 appellate filing fee.
Dated July 19, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:21-cv-04218-KES Document 18 Filed 07/19/22 Page 3 of 3 PageID #: <pageID>