Henderson v. Department of Correction

Background

The court considered Mike C. Henderson’s application to proceed without prepaying the appellate filing fee. Henderson sought to appeal the court’s earlier dismissal of his case with prejudice. The opinion states that the earlier dismissal followed the court’s adoption of a report and recommendation by Magistrate Judge Leo I. Brisbois.

Legal standard

Under 28 U.S.C. § 1915, a person who cannot afford litigation costs may be allowed to proceed without paying fees in advance. The court explained that, under the Prison Litigation Reform Act, a prisoner granted this status is not excused from paying the filing fee. Instead, the fee may be paid in installments, beginning with an initial partial payment.

Ruling

The court determined that Henderson was entitled to proceed without prepaying the full appellate fee. It granted his application to proceed without prepayment of fees on appeal. The court also required him to pay an initial partial appellate filing fee of $28.17, which represented 20 percent of the average monthly deposits in his trust account during the six months before he filed his notice of appeal. The remainder of the filing fee must be paid in monthly installments under 28 U.S.C. § 1915(b)(2).