Moorman v. Walmart Supercenter et al

Filing 60

ORDER DENYING 58 MOTION for Leave to Appeal in forma pauperis filed by Elaine Marie Moorman.Signed by Judge Michael J. Reagan on 8/22/2011. (mmr)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELAINE MOORMAN,

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Plaintiff,
vs.
WAL-MART STORES, INC.,
Defendant.

Case No. 10-cv-405-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Elaine Marie Moorman is proceeding in the District Court pro se.
Moorman’s amended complaint, alleging multiple forms of discrimination, harassment and
retaliation by her former employer, Defendant Wal-Mart Stores, Inc., was dismissed on June 7,
2011 (Doc. 48), and Judgment was entered on June 8, 2011 (Doc. 49). A notice of appeal was
filed on July 6, 2011 (Doc. 50). Moorman was granted an extension of time, until August 8,
2011, to move for pauper status on appeal (Doc. 56). On August 19, 2011, Moorman filed in the
Court of Appeals for the Seventh Circuit her motion for leave to appeal in forma pauperis
(“IFP”) and accompanying financial affidavit, which were transferred to the District Court for
ruling (Doc. 58).
The Court will overlook the fact that Moorman filed her motion to proceed as a
pauper out of time. See Fed.R.App.P. 3(A)(2).
A fairly liberal standard governs motions for leave to appeal IFP. See, e.g, Pate v.
Stevens, 163 F.3d 437, 438 (7th Cir. 1998). A District Court may authorize commencement of
an appeal without prepayment of fees by a person who submits an affidavit showing that he is
unable to pay the appellate filing fee. 28 U.S.C. 1915(a)(1). However, authorization for IFP
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status on appeal is not permissible if the District Court certifies in writing that the appeal “is not
taken in good faith.” 28U.S.C. 1915(a)(3); see also Moran v. Sondalle, 218 F.3d 647, 651(7th
Cir. 2000)(revoking grants of IFP on appeal because “appeals are not taken in good faith for
purposes of § 1915(a)(3)”). An appeal is not taken in good faith if the Court concludes that no
reasonable person could suppose the appeal to have any merit. See Lee v.Clinton, 209 F.3d
1025, 1026 (7th Cir. 2000). In other words, an appeal is not taken in good faith if the grounds
for appeal are frivolous or the appeal is futile. See Celske v. Edwards, 164 F.3d 396, 397 (7th
Cir.1999). But, as the Seventh Circuit admonished in Pate, 163 F.3d at 439: “We caution district
courts not to apply an inappropriately high standard when making good faith determinations.”
Moorman was denied pauper status when she commenced her case in the District
Court (Doc. 5). At that time, Moorman indicated that she had set aside $455 “for appeal if the
court rejects the case,” but the Court will make its decision based only on Moorman’s current
financial affidavit.

Moorman is unemployed, and she and her husband have a monthly

retirement income of approximately $4,100; the Moormans also have approximately $10,000 in
individual savings accounts and $570 cash on hand.1 The Moormans’ monthly expenses total
approximately $2,500, which includes $113 “extra” payment toward a mortgage, and $565 to
“help” their 33 year old son. Although Moorman’s financial status is not ideal, it appears that
she does have the ability to pay the appellate filing fee and the costs of an appeal. Having
determined that Moorman can afford the costs of the appeal, the Court need not assess whether
her appeal is taken in good faith.

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The Court will not take into account what the Court perceives to be the bulk of the
Moormans’ relatively modest retirement nest egg: an IRA, savings account and CDs, their home
and real estate.
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IT IS THEREFORE ORDERED that Plaintiff Moorman’s motion to proceed in
forma pauperis on appeal (Doc. 58) is DENIED. Plaintiff may refile her motion in the Court of
Appeals for the Seventh Circuit pursuant to Federal Rule of Appellate Procedure 24.
IT IS SO ORDERED.
DATED: August 22, 2011
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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