Scurlock v. Penthouse International Entertainment Consultants IEC

Filing 35

MEMORANDUM AND ORDER, The Court ORDERS Scurlock to file a notice in the District Court on or before July 5, 2016, affirmatively stating whether he intended to appeal Magistrate Judge Wilkerson's order to the Court of Appeals or the District Judge.The Court further DIRECTS the Clerk of Court to transmit a copy of this order to the Court of Appeals for consideration in connection with Appeal No. 16-2414. Signed by Judge J. Phil Gilbert on 6/21/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES SCURLOCK,
Plaintiff,
v.

Case No. 15-cv-338-JPG-DGW

PENTHOUSE INTERNATIONAL
ENTERTAINMENT CONSULTANTS IEC,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Charles Scurlock’s motion for leave to
appeal in forma pauperis (Doc. 31).
The Court is puzzled by a fundamental question with respect to Scurlock’s “notice of
appeal” (Doc. 30) of Magistrate Judge Donald G. Wilkerson’s order (Doc. 29) denying Scurlock’s
motions for recruitment of counsel (Docs. 24 & 26). The notice does not clearly indicate it is an
appeal to the Court of Appeals for the Seventh Circuit, which it must do to qualify as a bona fide
notice of appeal to the Court of Appeals. See Fed. R. App. P. 3(c)(1)(C) (“The notice of appeal
must . . . name the court to which the appeal is taken.”). This leads the Court to believe Scurlock
did not intend to appeal to the Court of Appeals and instead intended to appeal to the District Judge
under 28 U.S.C. § 636(b)(1)(A).
However, Scurlock filed with his “notice of appeal” a motion for leave to proceed on
appeal without prepaying fees and costs (Doc. 31). Since an appeal to the Court of Appeals
requires payment of a fee (or leave to proceed without prepayment) but an appeal to the District
Judge has no fee, this suggests that perhaps Scurlock did intend to appeal to the Court of Appeals.
Rather than running the risk that Scurlock will be saddled with an appellate fee he did not

intend to incur – the Court is unlikely to grant his motion for leave to appeal in forma pauperis
because he is appealing an order that is not immediately appealable to the Court of Appeals, see
Randle v. Victor Welding Supply Co., 664 F.2d 1064, 1067 (7th Cir. 1981) (per curiam) – the
Court will seek clarification from Scurlock before taking any action on his motion (Doc. 31).
Accordingly, the Court ORDERS Scurlock to file a notice in the District Court on or
before July 5, 2016, affirmatively stating whether he intended to appeal Magistrate Judge
Wilkerson’s order to the Court of Appeals or the District Judge. Should Scurlock fail to timely
file the notice, the Court will assume he intended to appeal to the Court of Appeals and will
entertain his motion for leave to proceed on appeal in forma pauperis. The Court RESERVES
RULING on the motion pending receipt of Scurlock’s clarifying notice. The Court further
DIRECTS the Clerk of Court to transmit a copy of this order to the Court of Appeals for
consideration in connection with Appeal No. 16-2414.
IT IS SO ORDERED.
DATED: June 21, 2016
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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