Aery v. Beitel

Background

The court considered James Paul Aery’s application to proceed in forma pauperis on appeal, meaning to pursue an appeal without paying the appellate filing fee in advance. The court had previously adopted a magistrate judge’s recommendation and dismissed the case on September 4, 2024. Aery sought to appeal that dismissal without paying the $605 appellate filing fee upfront.

Applicable rule

Under 28 U.S.C. § 1915, a prisoner who receives in forma pauperis status is generally allowed to pay the filing fee in installments rather than being excused from the fee. Under the Prison Litigation Reform Act, filing a notice of appeal makes a prisoner responsible for the full filing fee regardless of the appeal’s outcome. The initial partial appellate fee is ordinarily calculated as 20% of the greater of the prisoner’s average monthly deposits or average monthly account balance during the preceding six months.

Aery did not submit a certified trust-account statement. But he showed that his current prison-account balance was $0.00 and that he had no income during the previous 12 months. The court found that he had no assets or means to pay an initial partial appellate fee and that requiring a certified statement to calculate that fee would be futile.

Ruling

Judge Katherine Menendez granted Aery’s application to proceed in forma pauperis on appeal. The court did not require him to pay an initial partial appellate fee. It also ordered him to pay the unpaid balance of the full $605 statutory appellate filing fee through deductions from his prison account as funds become available. The clerk was directed to notify the authorities at the institution where Aery is confined.

This amended order corrected the amount stated in an earlier order: the full appellate filing fee is $605, not $600, because it includes an additional $5 charge under 28 U.S.C. § 1917. This order addressed the fee application and did not decide the merits of Aery’s appeal.