McCoy v. Edmeister et al

Filing 130

MEMORANDUM AND ORDER, Plaintiff's Motion (Doc. 128 ) to Transfer Record is MOOT. The Court CERTIFIES that this appeal is not taken in good faith and accordingly DENIES the Plaintiff's Motion for Leave to proceed on appeal in forma pauperis (Doc. 129 ). The Clerk of Court is DIRECTED to send a copy of this order to the United States Court of Appeals for the Seventh Circuit. Signed by Judge J. Phil Gilbert on 1/12/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER H. MCCOY,
Plaintiff,
vs.
ERIC T. EDMISTER,
Defendant.

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Case No. 14-cv-01379-JPG-DGW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion (Doc. 129) to Enter the Record
for Inability to Pay on Appeal which the Court is construing as a Motion to Appeal in forma
pauperis. Although the plaintiff is requesting that this Court and the United States Court of
Appeals for the Seventh Circuit waive all fees, there are no provisions that would provide for a
waiver of fees with regard to this cause of action.
A court can deny a qualified plaintiff leave to file in forma pauperis if – before or after
the notice of appeal is filed- the court certifies that the appeal is not taken in good faith or finds
that the party is not otherwise entitled to proceed in forma pauperis and states in writing its
reasons. Fed. R. App. P. 24(a)(3)(A). When assessing a petition to proceed in forma pauperis, a
district court should inquire into the merits of the petitioner’s claims, and if the court finds them
to be frivolous, it should deny leave to proceed in forma pauperis. Lucien v. Roegner, 682 F.2d
625, 626 (7th Cir. 1982).
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).

In this matter, the plaintiff is appealing this Court’s grant of summary judgment based on
qualified immunity. The defendants were entitled to qualified immunity because their actions
did not rise to a violation of Plaintiff’s constitutional rights. As such, there are no legal points
that could be reasonably arguable on their merits and the Court finds that the plaintiff is not
otherwise entitled to proceed in forma pauperis.
The Court also notes that the plaintiff has filed a Motion (Doc. 128) to Transfer Record to
the Court of Appeals. The Court believes that the plaintiff is attempting to comply with the Rule
10 Letter at docket 126. This motion is not sufficient to meet the requirements of Rule 10 and
the plaintiff is directed to review the instructions contained in the Rule 10 letter. The Court notes
that the Transmission of the Short Record to the Court of Appeals was performed on December
27, 2016. Therefore, Plaintiff’s Motion (Doc. 128) to Transfer Record is MOOT.
Therefore, the Court CERTIFIES that this appeal is not taken in good faith and
accordingly DENIES the Plaintiff’s Motion for Leave to proceed on appeal in forma pauperis
(Doc. 129). The Clerk of Court is DIRECTED to send a copy of this order to the United States
Court of Appeals for the Seventh Circuit.
IT IS SO ORDERED.
DATED: 1/12/2017
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE