Spivey v. Furlow et al

Filing 123

MEMORANDUM AND ORDER Denying 121 MOTION for Leave to Appeal in forma pauperis filed by William O Spivey, Denying 122 MOTION for Leave to Appeal in forma pauperis filed by William O Spivey. Signed by Judge J. Phil Gilbert on 9/24/12. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM O. SPIVEY,
Plaintiff,
vs.

Case No. 10-cv-689-JPG

SEAN FURLOW, et. al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motions for leave to appeal in forma
pauperis (Docs. 121 & 122). For the following reasons, the Court denies plaintiff’s motions.
A federal court may permit a party to proceed on appeal without full pre-payment of fees
provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1) &
(3); Fed. R. App. P. 24(a)(3)(A). A frivolous appeal cannot be made in good faith. Lee v.
Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good
faith or not frivolous is whether any of the legal points are reasonably arguable on their merits.
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967));
Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). Here, the Court granted summary
judgment against plaintiff for failure to exhaust his administrative remedies. No reasonable
person could find that plaintiff exhausted his administrative remedies.
Further, a notice of appeal must be filed within thirty days from the entry of judgment.
Fed. R. App. P. 4(a)(1). Judgment in this case was entered on May 14, 2012, and plaintiff did
not file a notice of appeal until July 10, 2012. Accordingly, plaintiff failed to file his notice of
appeal within the proper time frame.

For the foregoing reasons, the Court DENIES plaintiff’s motions for leave to appeal in
forma pauperis (Docs. 121 & 122).
IT IS SO ORDERED.
DATED: September 24, 2012
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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