Green v. Godinez et al

Filing 73

ORDER DENYING Plaintiff's Motion for Leave to Proceed in forma pauperis (Doc. 69 ) and Plaintiff's Motion for Leave to Appeal in forma pauperis (Doc. 60 ). Signed by Judge Staci M. Yandle on 11/7/2016. (tfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JERMELL GREEN, M43000,
Plaintiff,
vs.
SALVADOR GODINEZ, et al.,
Defendants.

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Case No. 15-CV-00589-SMY-PMF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motions for leave to proceed in forma
pauperis (“IFP”) (Docs. 60 and 69). Plaintiff has filed a Notice of Appeal with respect to this
Court’s adoption of the Report and Recommendations of Magistrate Judge Frazier granting
summary judgment for Plaintiff’s failure to exhaust administrative remedies (Doc. 55). He now
wishes to appeal the dispositive order IFP.
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 and 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).
The Court has no doubt that Plaintiff is indigent. However, the appeal is frivolous.
Defendant was granted summary judgment because the Magistrate Judge found that Plaintiff
failed to exhaust his administrative remedies by either skipping a step in the grievance process or

sending his appeals to the Administrative Review Board (ARB) after the 30 day deadline expired
(Doc. 54). Plaintiff admitted to reading the prisoner handbook for his institution which clearly
states the steps for the grievance process; therefore the grievance process was not “unavailable”
to him. Plaintiff has offered no new or compelling arguments in his Notice of Appeal, simply
stating that he had followed the instructions of his counselor (Doc. 57). Thus, there are no legal
points that are reasonably arguable on their merits.
For the foregoing reasons, Plaintiff’s motions for leave to appeal in Forma Pauperis
(Docs. 60 and 69) are DENIED.

IT IS SO ORDERED.
DATED: November 7, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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