Feyrer v. Jones et al

Filing 18

WRITTEN Opinion entered by the Honorable Amy J. St. Eve on 5/24/2012: Plaintiff's motions for leave to appeal in forma pauperis [document nos. 7 and 16 ] are denied. The Court certifies that the appeal is not taken in good faith and orders P laintiff to pay the appellate fees of $455 within fourteen days or the Court of Appeals may dismiss his appeal for want of prosecution. The Clerk is directed to send a copy of this order to the PLRA Attorney, U.S. Court of Appeals for the Seventh Circuit. [For further details see written opinion.] Mailed notice.(mr, )

Order Form (01/2005)

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

AMY J. ST. EVE

CASE NUMBER

12 C 2234 (App. No. 12-2046)

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/24/2012

Erwin Robert Feyrer (#2011-0928137) vs. Deputy Clerk B. Jones, et al.

DOCKET ENTRY TEXT:

Plaintiff’s motions for leave to appeal in forma pauperis [document nos. 7 and 16] are denied. The Court
certifies that the appeal is not taken in good faith and orders Plaintiff to pay the appellate fees of $455 within
fourteen days or the Court of Appeals may dismiss his appeal for want of prosecution. The Clerk is directed to
send a copy of this order to the PLRA Attorney, U.S. Court of Appeals for the Seventh Circuit.
O [For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff, an inmate in the custody of the Cook County Department of Corrections, has brought this pro
se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is attempting to sue Cook County Circuit Court
Clerks over their inability to locate a document in the common law record. Plaintiff contends that a motion for
declaratory judgment he apparently filed in his criminal case in June 2010 is missing from the state court file and
cannot be found.
By Minute Order of April 2, 2012, the Court granted Plaintiff’s motion for leave to proceed in forma
pauperis but summarily dismissed the complaint on initial review pursuant to 28 U.S.C. §1915A for failure to
state an actionable federal claim. Plaintiff has appealed the final judgment.
Plaintiff’s motions for leave to appeal in forma pauperis are denied. For the reasons stated in its dismissal
order, the Court finds that this action does not raise a substantial issue meriting appellate review. The Court
remains satisfied that Defendants cannot be held liable under 42 U.S.C. § 1983 for a lost or misfiled court filing.
“[A]n allegation of simple negligence will not support a claim that an official has denied an individual of access
to the courts.” Snyder v. Nolen, 380 F.3d 279, 291 n. 11 (7th Cir. 2004) (citing Kincaid v. Vail, 969 F.2d 594,
602 (7th Cir. 1992)). The Court additionally questions whether Plaintiff would be able to establish the element
of prejudice necessary for a court-access claim. See In re Maxy, 674 F.3d 658, 661 (7th Cir. 2012). The Court
accordingly certifies, pursuant to 28 U.S.C. § 1915(a)(3), that the appeal is not in good faith and that no appeal
should be taken. When a suit is found to be (CONTINUED)
mjm

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STATEMENT (continued)
frivolous, an ensuing appeal generally cannot be “in good faith” under § 1915(a)(3). Moran v. Sondalle, 218 F.3d
647, 650 (7th Cir. 2000).
Under the rules of the U.S. Court of Appeals for the Seventh Circuit, if the district court certifies that an
appeal is not taken in good faith, the appellant cannot prosecute the appeal in forma pauperis but rather must pay
the appellate fees in full for the appeal to go forward. Consequently, Plaintiff must pay the full $455 within
fourteen days or the Court of Appeals may dismiss his appeal for want of prosecution. See Evans v. Illinois Dep’t
of Corr., 150 F.3d 810, 812 (7th Cir. 1998). If Plaintiff wishes to contest this Court’s finding that the appeal is not
taken in good faith, he must file a motion with the Court of Appeals seeking review of this Court’s certification
within thirty days of service of this order. See Fed. R. App. P. 24(a)(5).
In sum, Plaintiff’s motions for leave to appeal in forma pauperis are denied. Plaintiff is ordered to remit
to the Clerk of the Court the $455 appellate fee within fourteen days of the date of this order. If Plaintiff fails to
comply with this order, the Court of Appeals may dismiss his appeal. Plaintiff is responsible for ensuring payment
of the filing fees as directed by this order, and should ensure that the institution having custody of him transmits
the necessary funds. Nonpayment for any reason other than destitution shall be construed as a voluntary
relinquishment of the right to file future suits in forma pauperis. The obligation to ensure full payment of the filing
fees imposed by this order shall not be relieved by release or transfer to another prison. Plaintiff is under a
continuing obligation to inform the Clerk of this Court in writing of any change of address within seven days.
Payment shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois
60604, attn: Cashier’s Desk, 20th Floor. Payment should clearly identify Plaintiff’s name, as well as the district
court and appellate court case numbers assigned to this action.
The Clerk is directed to send a copy of this order to the PLRA Attorney, United States Court of Appeals
for the Seventh Circuit.

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