Miller v. Turner et al

Filing 19

WRITTEN Opinion entered by the Honorable Samuel Der-Yeghiayan on 8/1/2011. For the reasons stated below, Plaintiff's motion for certificate of appealability 12 is stricken as improper. Plaintiff's motion for reconsideration 12 is denied. Plaintiff's motion for leave to proceed on appeal in forma pauperis 12 is denied. [For further details see written opinion.] Mailed notice (lw, ).

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Samuel Der-Yeghiayan

CASE NUMBER

11 C 1127

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

8/1/2011

Ryan Miller (R-58096) vs. Leslie Turner, et al.

DOCKET ENTRY TEXT

For the reasons stated below, Plaintiff’s motion for certificate of appealability [12] is stricken as improper.
Plaintiff’s motion for reconsideration [12] is denied. Plaintiff’s motion for leave to proceed on appeal in
forma pauperis [12] is denied.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
This matter is before the court on Plaintiff Ryan Miller’s (Miller) pro se filing titled “Notice of
Appeal and Motion for Certificate of Appealability.” (Mot. 1). The court notes that Miller has brought
another civil action (11 C 2151) in which Miller has made a similar filing. On February 24, 2011, the court
denied Miller’s first motion for leave to proceed in forma pauperis, since Miller had not completed the in
forma pauperis application form for proceeding in the Northern District of Illinois, nor provided sufficient
information relating to his financial status. Since Miller had failed to show that his motion for leave to
proceed in forma pauperis should be granted, the court dismissed the instant action without prejudice and
gave Miller leave to move to reinstate the instant action by March 23, 2011, by either paying the filing fee or
by filing an accurately and properly completed in forma pauperis application form. On March 21, 2011,
Miller filed a second motion for leave to proceed in forma pauperis.
Miller indicated in his second motion for leave to proceed in forma pauperis that, in the past twelve
months, he had received $550 in gifts. (IFP Par. 3(e)). Miller is incarcerated and thus is provided with the
necessities of life. See Lumbert v. Illinois Dept. of Corrections, 827 F.2d 257, 260 (7th Cir. 1987)(stating
that the plaintiff inmate was “not being asked to give up any necessities of life; they in any event [were]
11C1127 Ryan Miller (R-58096) vs. Leslie Turner, et al.

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STATEMENT
being bought for him by the State of Illinois”). Therefore, Miller had not shown that he is sufficiently
indigent to warrant granting his second motion for leave to proceed in forma pauperis. The court noted that
although Miller had indicated that his receipt of gifts is “very rare [and] will not happen again,” Miller
received such gifts after his claims allegedly arose, (Compl. Par. 14-15), and Miller therefore had the funds
available to pay the filing fee in the instant action. The court thus denied Miller’s second motion for leave to
proceed in forma pauperis. On May 16, 2011, Miller filed a motion for reconsideration, which this court
denied on July 8, 2011.
Miller is proceeding pro se and the court will liberally construe his instant filing. To the extent that
Miller is seeking a certificate of appealability in accordance with 28 U.S.C. § 2253(c), his motion is improper
since such a certificate of appealability would only be applicable for a petition for a writ of habeas corpus.
In the instant action, Miller is bringing claims for damages under 42 U.S.C. § 1983. Therefore, as in case
number 11 C 2151, a certificate of appealability is not needed and this motion for a certificate of
appealability is stricken as improper.
To the extent that Miller is again seeking a reconsideration of the dismissal of this action and lack of
reinstatement, Miller has not shown that the court erred in its prior rulings or presented any new arguments or
evidence that shows that the case should be reinstated. Therefore, the motion for reconsideration is denied.
Miller also makes references in the instant motion to his inability to pay the filing fee and ability to
pay a partial filing fee. To the extent that Miller is seeking leave to proceed on appeal in forma pauperis,
Miller has not filed any in forma pauperis application form and has not provided any detailed information
concerning his current financial status. Therefore, the motion for leave to proceed on appeal in forma
pauperis is denied. If Miller submits the appropriate in forma pauperis forms and provides the information
relating to his financial status, the court will review such request.

11C1127 Ryan Miller (R-58096) vs. Leslie Turner, et al.

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