Knode v. Erickson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ANDREW DWIGHT KNODE,
Plaintiff,
vs.
OFFICER JOSEPH ERICKSON, in his
individual and official capacity,
Defendant.
4:19-CV-04181-KES
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
Plaintiff, Andrew Dwight Knode, filed a prisoner pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. Knode notified the court that he was
released from the Yankton County jail. Docket 52. Knode filed a notice of
interlocutory appeal. Docket 53. This court notified Knode that he had until
May 15, 2021, to pay the appellate filing fee. Docket 57.
The Eighth Circuit Court of Appeals ordered Knode to pay the filing fee
or move for in forma pauperis status by May 20, 2021. Docket 60. Now, Knode
claims he is in custody and moves for leave to proceed in forma pauperis.
Docket 62. Under the Prison Litigation Reform Act (PLRA), a prisoner who
“brings a civil action or files an appeal in forma pauperis . . . shall be required
to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1) (emphasis added).
Based on the record, it is unclear whether Knode was a prisoner at the time he
filed his notice of appeal. Assuming that Knode was not in custody when he
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filed his notice of appeal, this court will not assess the filing fees under the
PLRA. See Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005).
“[I]n forma pauperis status does not require a litigant to demonstrate
absolute destitution.” Lee v. McDonald’s Corp., 231 F.3d 456, 459 (8th Cir.
2000). But in forma pauperis status is a privilege, not a right. Williams v.
McKenzie, 834 F.2d 152, 154 (8th Cir. 1987). Federal Rule 24 of Appellate
Procedure requires an appellant seeking to proceed in forma pauperis on
appeal to so move in the district court and file 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.”
Fed. R. App. P. 24(a)(1). After review of Knode’s financial affidavit (Docket 63),
it appears he is indigent.
Thus, it is ORDERED:
1. 	That Knode’s motion for leave to proceed in forma pauperis on his
interlocutory appeal (Docket 62) is granted.
Dated May 20, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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