Courtright v. United States of America

Filing 46

AMENDED ORDER, granting 38 MOTION for Leave to Appeal in forma pauperis filed by Carl A. Courtright, III. The Clerk is instructed to immediately notify petitioner and the Seventh Circuit of this Amended Order. Signed by Chief Judge David R. Herndon on 1/8/2014. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARL A. COURTRIGHT, III,
Petitioner,
v.
Civil Case No. 12-cv-1078-DRH
Criminal Case No. 07-cr-30179-DRH
UNITED STATES OF AMERICA,
Respondent.
AMENDED MEMORANDUM AND ORDER1
HERNDON, Chief District Judge:
This cause is before the Court on petitioner’s motion for leave to proceed in
forma pauperis (“IFP”) on appeal (Doc. 38). In evaluating petitioner’s motion to
appeal IFP, the Court must determine whether the appeal is taken in good faith.
As to the good faith requirement, the Court must “find that a reasonable person
could suppose that the appeal has some merit.”

Walker v. O’Brien, 216 F.3d

626, 632 (7th Cir. 2000); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000).
“[A]n 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
1

The Court notes that it must amend its previously entered Order granting petitioner’s motion for
leave to appeal IFP (Doc. 43) as it incorrectly calculated petitioner’s required initial partial filing
fee based on an inadvertent mix-up of documents. As stated in this Amended Order, petitioner
must pay an initial partial filing fee of $24.33.

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indeed self-contradictory.”) That said, a district court is under an obligation “not
to

apply

an

inappropriately

high

standard

when

making

good

faith

determinations.” Pate v. Stevens, 163 F.3d 437, 438 (7th Cir. 1998).
In the case at bar, the petition was dismissed because this Court
determined petitioner’s claims were either barred from review or without merit.
However, the Court is unable to certify that this appeal is not taken in good faith.
See 28 U.S.C. § 1915 (a)(3).
Full payment of the $505.00 appellate filing and docketing fee is not
required in a habeas action under 28 U.S.C. §§ 2241. See Walker v. O’Brien, 216
F.3d 626, 638 n.5 (7th Cir. 2000) (courts cannot use the installment payment
procedure established by the Prisoner Litigation Reform Act (PLRA) in 28 U.S.C. §
1915(b)(2) to collect filing fees in habeas appeals). However, the Walker court
noted that “[a] court has it within its discretion to insist that litigants proceeding
IFP in non-PLRA cases must nonetheless pay a fee commensurate with their
ability to do so.” Id.
In regard to the district court’s discretion in ruling on an IFP request, the
Walker court references Longbehn v. United States, 169 F.3d 1082, 1083 (7th
Cir. 1999). In Longbehn, the district court, after recognizing that the PLRA did
not apply to a habeas proceeding, nevertheless exercised its discretion to adopt
the PLRA formula in § 1915(b)(1) in order to calculate a reasonable partial
payment of an appellate filing fee where the petitioner had requested to proceed
IFP. Longbehn, 169 F.3d at 1083 (affirming Longbehn v. Reno, 27 F. Supp. 2d

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1162, 1164 (W.D. Wis. 1998)). The Seventh Circuit stated that this exercise of
discretion was sound, and further “commend[ed] [the Judge’s] approach to other
district judges.” Id.
Under the approach recommended in Longbehn, this Court may
appropriately adopt the PLRA formula to calculate a partial payment of the
appellate fee. The undersigned Judge is persuaded that this use of § 1915(b)(1) is
a proper exercise of the Court’s discretion in arriving at a fair, sliding-scale
formula for an appropriate partial fee payment.
The Court finds that petitioner is indigent. Therefore, the instant motion
(Doc. 38) is GRANTED.

Based on petitioner’s trust fund account statements, IT

IS HEREBY ORDERED that petitioner shall make a payment of $24.33 toward
the appellate docketing fee, and is granted leave to proceed IFP with respect to the
remainder of the fee. A litigant who proceeds IFP still owes the fees. If he wins,
the fees are shifted to the adversary as part of costs; if he loses, the fees are
payable like any other debt. Thomas v. Zatecky, 712 F.3d 1004, 1005 (7th Cir.
2013).

Petitioner is DIRECTED to pay the $24.33 to the Clerk of Court upon

receipt of this Memorandum and Order. Payment shall be mailed to: Clerk of the
Court, United States District Court for the Southern District of Illinois, P.O. Box
249, East St. Louis, Illinois 62202.
Petitioner is ADVISED that at the time application was made under 28
U.S.C. § 1915 for leave to appeal this action without being required to prepay fees
and costs or give security for the same, the applicant and his or her attorney were

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deemed to have entered into a stipulation that the recovery, if any, secured in the
action shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid
costs taxed against plaintiff and remit the balance to plaintiff. SDIL-LR 3.1(c)(1).
Finally, Petitioner is ADVISED that he is under a continuing obligation to
keep the Clerk of this Court informed of any change in his whereabouts. This
shall be done in writing and not later than seven (7) days after a transfer or other
change in address occurs.
The Clerk is instructed to immediately notify petitioner and the
Seventh Circuit of this Amended Order.

IT IS SO ORDERED.
Signed this 8th day of January, 2014.

David R.
Herndon
2014.01.08
19:12:10 -06'00'
Chief Judge
United States District Court

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