Clinkenbeard v. King

Background

Robert Clinkenbeard, proceeding without a lawyer, filed a petition under 28 U.S.C. § 2241 challenging the Bureau of Prisons’ determination that he was ineligible to earn First Step Act time credits. Before the court ruled on the petition, Clinkenbeard filed a notice of interlocutory appeal with the Eighth Circuit. He then applied to proceed in forma pauperis on appeal, meaning he sought permission to appeal without paying the full filing fee.

Although the application was titled as a request to proceed without paying fees in district court, the court construed it as an application to proceed without paying fees on appeal.

Court’s analysis

Under 28 U.S.C. § 1915, a person may seek permission to proceed without paying the appellate filing fee by showing an inability to pay. Even if the person is unable to pay, the court must deny that status when the appeal is not taken in good faith. The court used an objective standard and explained that an appeal is not taken in good faith when its legal or factual arguments are frivolous.

The court concluded that Clinkenbeard’s interlocutory appeal was premature. Because the court had not yet ruled on his § 2241 petition, there was no district-court order for the Eighth Circuit to review. The court therefore found that the appeal was frivolous and not taken in good faith.

The court also explained that the notice of appeal generally removed its authority to decide matters involved in the appeal while the appeal was pending. It therefore could not resolve Clinkenbeard’s pending motion to supplement his reply brief and would defer that motion until the appeal concluded.

Disposition

Judge John R. Tunheim denied Clinkenbeard’s Application to Proceed In Forma Pauperis on Appeal, Docket No. 23. The order did not decide the merits of Clinkenbeard’s petition challenging his eligibility for First Step Act time credits.