McFee v. Burkhurst
- Michael Davis
- 0:18-cv-03402
- U.S. District Court · District of Minnesota
- 5
In McFee v. Burkhurst, Judge Davis granted McFee permission to appeal without prepaying, required $43.82, and denied counsel without prejudice.
Richard Angelo McFee, whose appeal may proceed only after payment of the $43.82 initial partial fee and whose remaining $461.18 fee will be collected in installments; the district court and prison officials responsible for processing those payments are also affected.
What happened
McFee v. Burkhurst concerns Richard Angelo McFee’s appeal from the dismissal of his case. Because he had not paid the appeal filing fee, McFee asked to proceed without paying the full fee upfront and sought appointment of counsel.
The court granted permission to proceed without prepaying the full fee, but required McFee to pay an initial $43.82 and the remaining $461.18 through deductions from his prison account. The court also found that the appeal was taken in good faith. It denied McFee’s request for counsel without prejudice because the appeal had transferred authority over appeal-related matters to the appeals court, where McFee could refile the request.
Judge Davis ruled that the district court could not appoint counsel after McFee filed his notice of appeal. The order did not reconsider the earlier dismissal; it addressed only the appeal-fee request and the request for counsel.
The detailed version
- McFee v. Burkhurst · No. 0:18-cv-03402
- Michael Davis
- June 11, 2019
Background
Richard Angelo McFee filed a notice of appeal challenging the dismissal of this action. He had not paid the appellate filing fee and instead submitted a motion and affidavit seeking permission to proceed without paying the fee in advance. McFee also filed a reconsidered motion for appointment of counsel. The opinion states that it was unclear whether that motion was intended for the district court or the U.S. Court of Appeals for the Eighth Circuit.
Appeal Filing Fee
Because McFee is a prisoner, the Prison Litigation Reform Act required him to pay the full appellate filing fee, although he could seek permission to pay it in installments. The statute bases the initial partial fee on 20 percent of the greater of the prisoner’s average monthly deposits or average monthly account balance during the relevant six-month period.
The records showed average monthly deposits of $219.10 and an average monthly balance of $30.00. The court therefore calculated the initial partial filing fee as $43.82. The appeal would not go forward until that amount was paid. The remaining $461.18 of the $505.00 appellate filing fee had to be paid through later deductions from McFee’s prison account, regardless of whether he succeeded in the appeal.
Appointment of Counsel
To the extent McFee’s counsel motion was directed to the district court, the court denied it. Filing a notice of appeal gives the appeals court authority over the matters involved in the appeal and removes the district court’s control over those matters. The court concluded that appointment of counsel for the appeal was one of those matters, so it lacked authority to appoint counsel.
The court denied the counsel motion without prejudice for lack of jurisdiction and stated that McFee could refile the motion with the Eighth Circuit.
Disposition
The court granted McFee’s application to proceed without prepaying the full appellate fee, subject to the $43.82 initial payment and installment requirements. It ordered payment of the remaining $461.18 through deductions from his prison account. It denied without prejudice the motion for appointment of counsel for lack of jurisdiction. The court also found that the appeal was taken in good faith and was not frivolous under the applicable statute and appellate rule. Judge Michael J. Davis did not revisit the merits of the earlier dismissal in this order.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.