Beane v. Kemp
ORDER denying 11 Motion for Leave to Appeal in forma pauperis and certifying appeal not taken in good faith. Signed by Chief Judge David R. Herndon on 6/29/11. (klh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN B. KEMP, JR.,
HERNDON, Chief Judge:
This matter comes before the Court on Beane’s motion for leave to proceed in
forma pauperis on appeal (Doc. 11). Based on the following, the Court denies the
motion for leave to proceed in forma pauperis.
On May 23, 2011, Kenny Beane filed a complaint against John B. Kemp, Jr
(Doc. 1) and a motion to proceed in forma pauperis (Doc. 2). After reviewing the
pleadings, the Court set this matter for hearing on the motion to proceed in forma
pauperis. On June 16, 2011, the Court held the hearing and orally dismissed with
prejudice Beane’s claims as frivolous and for failure to state a claim. That same day,
the Clerk of the Court entered judgment reflecting the same. On June 22, 2011,
Beane filed his notice of appeal (Doc. 7). The Court construed the notice of appeal
as also containing a motion to proceed in forma pauperis on appeal (Doc. 11).
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Federal Rule of Appellate Procedure 24(a) provides in part:
Except as stated in Rule 24(a)(3), a party to a district-court action who
desires to appeal in forma pauperis must file a motion in the district
court. The party must attach an affidavit that:
(A) shows in detail prescribed by Form 4 of the Appendix of Forms, the
party’s inability to pay or to give security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
“An appeal may not be taken in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). A plaintiff is “acting in bad
faith in the more common legal meaning of the term . . . [when he sues] . . . on the
basis of a frivolous claim, which is to say a claim that no reasonable person could
suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000).
Further, “an appeal in a frivolous suit cannot be ‘in good faith’ under § 1915(a)(3),
because ‘good faith’ must be viewed objectively.” Moran v. Sondalle, 218 F.3d 647,
650 (7th Cir. 2000). See also Lee, 209 F.3d at 1026; Tolefree v. Cudahy, 49 F.3d
1243, 1244 (7th Cir. 1995) (“[T]he granting of leave to appeal in forma pauperis
from the dismissal of a frivolous suit is presumptively erroneous and indeed selfcontradictory.”).
Here, even construing his motion liberally, Beane’s motion to proceed in forma
pauperis on appeal is insufficient. It does not contain information required under
Form 4, does not state the issues on appeal and does not state an entitlement to
redress. Moreover, the notice of appeal/motion to proceed in forma pauperis, much
like the complaint and original motion to proceed in forma pauperis, is a nonsensical
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rant. It is very hard to discern from his pleadings what Beane is complaining.
Further, this action was dismissed as frivolous and for failure to state a claim
under 28 U.S.C. § 1915. As stated at the oral argument on the motion to proceed in
forma pauperis, Beane’s complaint is devoid of substantive allegations of wrongdoing
by defendant Kemp. His allegations against Kemp do not rise to a constitutional
violation despite Beane’s belief to the contrary. Further, Beane has offered no
argument indicating why this Court’s conclusion was incorrect. A reasonable person
could not suppose that the appeal has some merit, as is required in order for the
appeal to be taken in good faith. Therefore, the Court CERTIFIES that this appeal
is not taken in good faith.
Accordingly, the Court denies Beane’s motion to proceed in forma pauperis on
appeal (Doc. 11). The Court DIRECTS Beane to tender the appellate filing and
docketing fee of $455 to the Clerk of the Court in this District or Beane may refile his
motion seeking leave to proceed in forma pauperis with the Seventh Circuit Court of
IT IS SO ORDERED.
Signed this 29th day of June, 2011.
Digitally signed by David R.
Date: 2011.06.29 11:09:40
United States District Court
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