Kelly v. Plaid Moose Inc., The

U.S. District Court, District of Minnesota February 21, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
STEPHEN P. KELLY,
Civil No. 23-3358 (JRT/TNL)
Plaintiff,

v.
MEMORANDUM OPINION AND ORDER
PLAID MOOSE INC., THE, DENYING PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS ON
Defendant. APPEAL

Stephen P. Kelly, General Delivery, Jackson, MN 56143, pro se Plaintiff.

Plaintiff Stephen P. Kelly filed an action against Plaid Moose Inc. for unauthorized
leasing activity and disclosure of his personal phone number. He applied to proceed in
forma pauperis (“IFP”). The Court dismissed his Complaint without prejudice for failing
to state a claim upon which relief can be granted and denied his IFP application as moot.
Mr. Kelly seeks to appeal the Court’s order and proceed IFP on appeal. Because his appeal
is not taken in good faith, the Court will deny his application to proceed IFP on appeal.
Additionally, the Court has been divested of jurisdiction of Mr. Kelly’s motion to amend
his Complaint and as such will not reach a decision on that motion.
BACKGROUND
In September 2023, Mr. Kelly visited the Plaid Moose coffee shop in Slayton,
Minnesota. (Compl. ¶¶ 2, 14, Nov. 1, 2023, Docket No. 1.) During his visit, a Plaid Moose
employee, Tonya, offered him a leasing application for the Southgate apartment complex
(“Southgate”). (Id. ¶ 15.) Initially, Mr. Kelly informed Tonya that he was not interested

in the leasing application, but at her persistence he ultimately rented an apartment at
Southgate. (Id. ¶¶ 17, 20–21.) Mr. Kelly claims that while living at Southgate, he suffered
religious discrimination, harassment, unlawful intimidation, and emotional hardship. (Id.
¶¶ 20–21.) Additionally, Mr. Kelly accuses Tonya of providing his phone number to

Southgate without his consent. (Id. ¶ 19.)
Mr. Kelly filed his Complaint alleging that Plaid Moose and Tonya were working as
unauthorized leasing agents for Southgate and that Tonya unlawfully disclosed his phone

number to Southgate. (Id. ¶¶ 23–24.) He applied for IFP status. (Appl. Proceed in District
Ct. without Prepaying Fees or Costs, Nov. 1, 2023, Docket No. 2.) The Court dismissed
Mr. Kelly’s Complaint without prejudice because he failed to state a claim upon which
relief could be granted and denied his IFP application as moot. (Mem. Op. & Order

Dismissing Case at 7–8, Nov. 15, 2023, Docket No. 3.) Mr. Kelly now wishes to appeal that
dismissal and proceed IFP on appeal. (Notice Appeal, Nov. 29, 2023, Docket No. 6; Appl.
Proceed IFP on Appeal, Dec. 15, 2023, Docket No. 10.) Additionally, Mr. Kelly filed a
motion to redact certain claims or file an amended civil complaint. (Mot., Nov. 16, 2023,

Docket No. 5.)
DISCUSSION
I. STANDARD OF REVIEW
A litigant who seeks to be excused from paying the filing fee for an appeal in a

federal case may apply for IFP status under

28 U.S.C. § 1915

.  To qualify for IFP status, the 
litigant must demonstrate that they cannot afford to pay the full filing fee.

28 U.S.C. § 1915

(a)(1).  Even if a litigant is found to be indigent, however, IFP status will be denied if 

the Court finds that the litigant's appeal is not taken in good faith.

Id.

 § 1915(a)(3).  Good 
faith in this context is judged by an objective standard and not by the appellant’s 
subjective point of view.  Coppedge v. United States,

369 U.S. 438

, 444–45 (1962).  To 
determine whether an appeal is taken in good faith, the Court must decide whether the 

claims to be decided on appeal are factually or legally frivolous.  Cf. Neitzke v. Williams,

490 U.S. 319, 325

 (1989).  Legal frivolity includes when “none of the legal points are 
arguable on their merits.”

Id.

 (cleaned up).                             
    A party to a district court action who desires to appeal IFP must also file a motion 

in the district court and attach an affidavit that (1) shows inability to pay or to give security 
for fees and costs; (2) “claims an entitlement to redress”; and (3) “states the issues that 
the party intends to present on appeal.”  Fed. R. App. P. 24(a)(1); see also

28 U.S.C. § 1915

(a)(1) (requiring the same).

II. ANALYSIS
Mr. Kelly describes three issues he intends to present on appeal: (1) that the Court
improperly evaluated the merits of his case before granting IFP status, (2) that the Court
contradicted itself in the standard of review for pro se complaints, and (3) that instead of
dismissal, the Court should have allowed Mr. Kelly to amend his Complaint. All these

arguments merely disagree with the process the Court took in evaluating Mr. Kelly’s
Complaint and initial IFP application. But the Court abided by accepted legal procedure.
Thus, Mr. Kelly presents no issues that could be appealed in good faith.

1. IFP Procedure
Mr. Kelly first takes issue with the procedure the Court followed when reviewing
his initial Complaint and IFP application. He argues that the Court erred when it evaluated
the merits of his Complaint before determining his IFP status. Instead, he claims, the
Court should have first granted him IFP status before substantively reviewing his

Complaint. Upon a finding that the Complaint lacked cognizable legal claims, the Court
then could have revoked his IFP status.
The Court understands how one could logically take this position, but legally, it is

not the procedure required under the IFP statute nor the practice in the District of
Minnesota.1 The IFP statute specifically instructs the Court to “dismiss the case at any
time if the court determines that … the action or appeal … fails to state a claim upon which
relief may be granted.”

28 U.S.C. § 1915

(e)(2)(B)(ii).  The statute does not instruct the 

Court to grant IFP status before reaching the substance of the claim.     


    1 See Devisme v. Ctr. Hous. Co., No. 22-1472,

2022 WL 2759092

, at *2 (D. Minn. July 14, 
2022); Sailee v. Anoka Cnty., No. 8-6043,

2009 WL 57032

, at *1 (D. Minn. Jan. 7, 2009); Glover v. 
Tigani, No. 23-171,

2023 WL 2753702

, at *2–5 (D. Minn. Mar. 31, 2023).    
    This procedure makes practical sense as well.  Conducting a substantive evaluation 
contemporaneously with an application for IFP status streamlines the process not only 

for the Court but also for the parties.  The Court followed the prescribed procedure, so 
Mr. Kelly’s disagreement does not create a legal issue for appeal.        
         2.   Standard of Review                                         
    Mr. Kelly next argues that the Court contradicted itself in applying the standard of 

review.  This argument stems from two of the Court’s statements: (1) that courts are to 
take all factual allegations in the Complaint as true and draw all inferences in plaintiff’s 
favor, and (2) that courts need not comb through the pleadings to find a plausible cause 
of action.  Mr. Kelly contends that these two statements directly contradict each other.  

However, they can, and do, coexist.                                       
    The two statements above relate to different steps in reviewing the Complaint.  
First, the Court takes all factual allegations as true.  The Court did that here.  Then, the 

Court analyzes those facts, assumed to be true, to determine if any legal claims have been 
stated.  Courts must liberally construe pro se complaints, but they are not required to 
invent  legal  claims.    Bediako  v.  Stein  Mart,  Inc.,

354 F.3d 835, 840

  (8th  Cir.  2004) 
(describing that courts are not required to “create claims that are not clearly raised”).  The 

Complaint simply contained no information about how the Plaid Moose, or its employee 
Tonya, violated any Minnesota laws by providing a leasing application or pestering Mr. 
Kelly to accept the application.2  The Court found that even if it were true that the Plaid 
Moose, through its employee Tonya, insisted Mr. Kelly apply for a lease at Southgate, the 

Complaint failed to allege any violations of Minnesota Law.               
    With respect to Mr. Kelly’s invasion of privacy claim, the Court investigated three 
potential privacy tort violations and dispelled each one.  The claim Mr. Kelly relies on in 
his notice of appeal, publication of private facts, failed because the Court determined as 

a matter of law that even if Tonya had disclosed Mr. Kelly’s phone number without his 
consent, that did not rise to the level of publicity required under Minnesota Law.  C.L.D. 
v. Wal-Mart Stores, Inc.,

79 F. Supp. 2d 1080, 1085

(D. Minn. 1999) (collecting cases

describing disclosure to a few people as insufficiently publicized). The Court found that
even if it were true that Mr. Kelly’s telephone number had been disclosed, the legal claim
failed.
Additionally, the Court analyzed all potential privacy claims based on Mr. Kelly’s

pleadings even though he just described it as “privacy disclosure.” (Compl. ¶ 24.) The
Court diligently evaluated potential claims. Nothing suggests the Court did anything but
follow the proper procedure for evaluating Mr. Kelly’s Complaint. Thus, Mr. Kelly’s claim
that the Court contradicted itself is legally frivolous.

2 The Court recognizes that Mr. Kelly makes accusations about religious discrimination
and harassment, but those claims relate to Southgate conduct and Southgate is not a party to
this case.
3. Leave to Amend
Mr. Kelly’s final argument on appeal is that the Court erred when it dismissed his

Complaint instead of providing leave to amend or an opportunity to argue for
reconsideration. This argument has two prongs. First, whether the Court has jurisdiction
to rule on Mr. Kelly’s motion to amend. And second, whether Mr. Kelly’s appeal of the
dismissal is taken in good faith.

Mr. Kelly filed a motion to amend his Complaint, but he filed a notice of appeal
before the Court could respond. “Once a notice of appeal is filed, the district court is
divested of jurisdiction over matters on appeal.” State ex rel. Nixon v. Coeur D’Alene Tribe,

164 F.3d 1102

, 1106 (8th Cir. 1999).  Because the issue of amending the Complaint is on 

appeal, the Court no longer has jurisdiction to decide Mr. Kelly’s motion to amend. 
    With respect to his appeal, Mr. Kelly does not present any substantive issues the 
Eighth Circuit could entertain on appeal.  Instead, he objects to the fact that the Court 

dismissed his Complaint without prejudice as opposed to providing him leave to amend.  
As a matter of law, the Court, upon a finding of no sufficient legal claims, must dismiss 
the complaint.

28 U.S.C. § 1915

(e)(2)(B)(ii).  The Eighth Circuit has specifically upheld this 
process of dismissal without leave to amend.  Cf. Higgins v. Carpenter,

258 F.3d 797

, 800 

(8th Cir. 2001).  Because Mr. Kelly again merely disagrees with the legally supported 
procedure taken by the Court, his appeal is legally frivolous.            
                                CONCLUSION 
     Mr. Kelly asked the Court to proceed IFP on appeal regarding three issues he has 
with the Court’s previous order.  Though Mr. Kelly disagrees with how the Court reached 
its opinion, he does not present any legal issues for appeal.  Because his appeal would not 
be taken in good faith, the Court will deny Mr. Kelly’s application to proceed IFP on appeal. 
Mr. Kelly also moves for leave to amend his Complaint.  Because Mr. Kelly filed a notice 
of appeal, the Court no longer has jurisdiction to consider his motion to amend. The Court 
understands  Mr.  Kelly  may  be  frustrated  by  the  outcome,  but  his  Complaint  was 
dismissed  without  prejudice.   Without  prejudice  means  that  Mr.  Kelly  can  fix  any 
deficiencies and  refile  his Complaint without permission from the Court or the  Eighth 
Circuit.  But the Court cannot consider his motion to amend while the appeal is pending.

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings  herein,  IT IS 
HEREBY ORDERED that Plaintiff’s Application to  Proceed  In  Forma  Pauperis on Appeal 
[Docket No. 10] is DENIED. 

DATED:  February 21, 2024                         oan W. (Udi 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

                                    -8-

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
STEPHEN P. KELLY,
Civil No. 23-3358 (JRT/TNL)
Plaintiff,

v.
MEMORANDUM OPINION AND ORDER
PLAID MOOSE INC., THE, DENYING PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS ON
Defendant. APPEAL

Stephen P. Kelly, General Delivery, Jackson, MN 56143, pro se Plaintiff.

Docket No. 5.)
DISCUSSION
I. STANDARD OF REVIEW
A litigant who seeks to be excused from paying the filing fee for an appeal in a

federal case may apply for IFP status under

28 U.S.C. § 1915

.  To qualify for IFP status, the 
litigant must demonstrate that they cannot afford to pay the full filing fee.

28 U.S.C. § 1915

(a)(1).  Even if a litigant is found to be indigent, however, IFP status will be denied if 

the Court finds that the litigant's appeal is not taken in good faith.

Id.

 § 1915(a)(3).  Good 
faith in this context is judged by an objective standard and not by the appellant’s 
subjective point of view.  Coppedge v. United States,

369 U.S. 438

, 444–45 (1962).  To 
determine whether an appeal is taken in good faith, the Court must decide whether the 

claims to be decided on appeal are factually or legally frivolous.  Cf. Neitzke v. Williams,

490 U.S. 319, 325

 (1989).  Legal frivolity includes when “none of the legal points are 
arguable on their merits.”

Id.

 (cleaned up).                             
    A party to a district court action who desires to appeal IFP must also file a motion 

in the district court and attach an affidavit that (1) shows inability to pay or to give security 
for fees and costs; (2) “claims an entitlement to redress”; and (3) “states the issues that 
the party intends to present on appeal.”  Fed. R. App. P. 24(a)(1); see also

28 U.S.C. § 1915

(a)(1) (requiring the same).

28 U.S.C. § 1915

(e)(2)(B)(ii).  The statute does not instruct the 

Court to grant IFP status before reaching the substance of the claim.     


    1 See Devisme v. Ctr. Hous. Co., No. 22-1472,

2022 WL 2759092

, at *2 (D. Minn. July 14, 
2022); Sailee v. Anoka Cnty., No. 8-6043,

2009 WL 57032

, at *1 (D. Minn. Jan. 7, 2009); Glover v. 
Tigani, No. 23-171,

2023 WL 2753702

, at *2–5 (D. Minn. Mar. 31, 2023).    
    This procedure makes practical sense as well.  Conducting a substantive evaluation 
contemporaneously with an application for IFP status streamlines the process not only 

for the Court but also for the parties.  The Court followed the prescribed procedure, so 
Mr. Kelly’s disagreement does not create a legal issue for appeal.        
         2.   Standard of Review                                         
    Mr. Kelly next argues that the Court contradicted itself in applying the standard of 

review.  This argument stems from two of the Court’s statements: (1) that courts are to 
take all factual allegations in the Complaint as true and draw all inferences in plaintiff’s 
favor, and (2) that courts need not comb through the pleadings to find a plausible cause 
of action.  Mr. Kelly contends that these two statements directly contradict each other.  

However, they can, and do, coexist.                                       
    The two statements above relate to different steps in reviewing the Complaint.  
First, the Court takes all factual allegations as true.  The Court did that here.  Then, the 

Court analyzes those facts, assumed to be true, to determine if any legal claims have been 
stated.  Courts must liberally construe pro se complaints, but they are not required to 
invent  legal  claims.    Bediako  v.  Stein  Mart,  Inc.,

354 F.3d 835, 840

  (8th  Cir.  2004) 
(describing that courts are not required to “create claims that are not clearly raised”).  The 

Complaint simply contained no information about how the Plaid Moose, or its employee 
Tonya, violated any Minnesota laws by providing a leasing application or pestering Mr. 
Kelly to accept the application.2  The Court found that even if it were true that the Plaid 
Moose, through its employee Tonya, insisted Mr. Kelly apply for a lease at Southgate, the 

Complaint failed to allege any violations of Minnesota Law.               
    With respect to Mr. Kelly’s invasion of privacy claim, the Court investigated three 
potential privacy tort violations and dispelled each one.  The claim Mr. Kelly relies on in 
his notice of appeal, publication of private facts, failed because the Court determined as 

a matter of law that even if Tonya had disclosed Mr. Kelly’s phone number without his 
consent, that did not rise to the level of publicity required under Minnesota Law.  C.L.D. 
v. Wal-Mart Stores, Inc.,

79 F. Supp. 2d 1080, 1085

(D. Minn. 1999) (collecting cases

164 F.3d 1102

, 1106 (8th Cir. 1999).  Because the issue of amending the Complaint is on 

appeal, the Court no longer has jurisdiction to decide Mr. Kelly’s motion to amend. 
    With respect to his appeal, Mr. Kelly does not present any substantive issues the 
Eighth Circuit could entertain on appeal.  Instead, he objects to the fact that the Court 

dismissed his Complaint without prejudice as opposed to providing him leave to amend.  
As a matter of law, the Court, upon a finding of no sufficient legal claims, must dismiss 
the complaint.

28 U.S.C. § 1915

(e)(2)(B)(ii).  The Eighth Circuit has specifically upheld this 
process of dismissal without leave to amend.  Cf. Higgins v. Carpenter,

258 F.3d 797

, 800 

(8th Cir. 2001).  Because Mr. Kelly again merely disagrees with the legally supported 
procedure taken by the Court, his appeal is legally frivolous.            
                                CONCLUSION 
     Mr. Kelly asked the Court to proceed IFP on appeal regarding three issues he has 
with the Court’s previous order.  Though Mr. Kelly disagrees with how the Court reached 
its opinion, he does not present any legal issues for appeal.  Because his appeal would not 
be taken in good faith, the Court will deny Mr. Kelly’s application to proceed IFP on appeal. 
Mr. Kelly also moves for leave to amend his Complaint.  Because Mr. Kelly filed a notice 
of appeal, the Court no longer has jurisdiction to consider his motion to amend. The Court 
understands  Mr.  Kelly  may  be  frustrated  by  the  outcome,  but  his  Complaint  was 
dismissed  without  prejudice.   Without  prejudice  means  that  Mr.  Kelly  can  fix  any 
deficiencies and  refile  his Complaint without permission from the Court or the  Eighth 
Circuit.  But the Court cannot consider his motion to amend while the appeal is pending.

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings  herein,  IT IS 
HEREBY ORDERED that Plaintiff’s Application to  Proceed  In  Forma  Pauperis on Appeal 
[Docket No. 10] is DENIED. 

DATED:  February 21, 2024                         oan W. (Udi 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

                                    -8-

Reference

Status: Unknown