Ryburn v. Westerman et al

Filing 127

ORDER DENYING 122 Affidavit construed as MOTION for Leave to Appeal in forma pauperis filed by Plaintiff Thomas V. Ryburn. Plaintiff Ryburn must either pay the appellate filing and docketing fee of $455 to the Clerk of Court in this District, or reapply to the Seventh Circuit Court of Appeals for leave to proceed in forma pauperis on appeal. See attached Order and Circuit Rule 3(b) for details. Signed by Judge Michael J. Reagan on 11/16/2010. (ehb)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS THOMAS RYBURN, ) ) Plaintiff, ) ) vs. ) Case No. 07-cv-0011-MJR-CJP ) DARRELL WESTERMAN and ) DAVID TINDELL, ) ) Defendants. ) MEMORANDUM & ORDER REAGAN, District Judge: On October 19, 2010, Plaintiff Thomas Ryburn ("Ryburn") filed a Notice of Appeal (Doc. 120), and submitted a form Affidavit regarding his financial status without any corresponding motion (Doc. 122). Nevertheless, the Court construes Ryburn's Affidavit as a Motion for Permission to Appeal In Forma Pauperis. Specifically, Ryburn moves to appeal in forma pauperis this Court's order granting summary judgment in favor of Defendants Darrell Westerman and David Tindell (Docs. 107, 108). In spite of the general lack of details provided in support of his motion, the Court acknowledges that Ryburn appears unable to pay the $455 docketing fee for his appeal. Regardless, the Court will deny his

motion because a reasonable person would not suppose that his appeal has any merit. See 28 U.S.C. § 1915(a)(3) (2006) ("An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in

good faith."); Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir 2000) ("[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." (citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000))). In his most recent appeal, Ryburn challenges this Court's Order (Doc. 107) granting summary judgment in Defendants' favor.1 In that

Order, this Court found the record "completely devoid of any evidence that [Defendants] took any action against [Ryburn] because of his filing of grievances or lawsuits" (Doc. 107, p. 7). This Court also found "the record devoid of any evidence that either defendant even knew about his grievances and lawsuits, many of which were filed while [Ryburn] was at Stateville and not Menard" (Id.). Ryburn further alleges that this Court

failed to consider claims he allegedly brought under the Eighth and Fourteenth Amendments to the United States Constitution. Ryburn's allegations are not supported by the record and they lack merit. First, in Ryburn's Complaint (Doc. 1) and his Amended

Complaint (Doc. 5), the only possible claims that this Court can discern involve retaliation. Other than one brief statement in the "Request for

Relief" section--that "Pl. claims U.S. Const. 1st, 5th, 8th, 14th Amend.
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The Court Notes that in his Docketing Statement, Ryburn answered "No" to the question "Has this case previously been appealed" (Doc. 121, p. 2). However, Ryburn filed an interlocutory appeal in this action on August 5, 2009, which was dismissed by Mandate issued on January 8, 2010, for failing to pay the required appellate docketing fee pursuant to Circuit Rule 3(b).

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Violations"--nowhere, in either Complaint, does Ryburn even mention the Eighth or Fourteenth Amendment; nor does he allege any facts that could be construed as stating a claim under the rubric of cruel and unusual punishment. Further, Ryburn has failed to direct this Court to any evidence that could be reasonably construed as suggesting that either Defendant retaliated against him because he had filed grievances and/or lawsuits. As a result, Ryburn's claims lack merit. In light of the foregoing, no reasonable person would suppose that an appeal based on these allegations would have any merit. This Court thus CERTIFIES that Ryburn's appeal is not taken in good faith (as defined above), and Ryburn's Affidavit (Doc. 122)--construed as a Motion for Permission to Proceed In Forma Pauperis on Appeal--is DENIED. As a result, Ryburn must either pay the appellate filing and docketing fee of $455 to the Clerk of Court in this District, or reapply to the Seventh Circuit Court of Appeals for leave to proceed in forma pauperis on appeal. IT IS SO ORDERED. DATED November 16, 2010.

/s/ Michael J. Reagan MICHAEL J. REAGAN United States District Judge

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