Wilson, Jr. v. Stanley

Filing 35

ORDER, Plaintiff's MOTION for Leave to Appeal in forma pauperis (Doc. 29 ) is DENIED; Plaintiff's Motion to Dismiss his Notice of Appeal (Doc. 34 ) is DENIED. Signed by Judge Staci M. Yandle on 4/18/2016. (hjg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TIMOTHY WILSON, JR.,
Plaintiff,
vs.

Case No. 15-cv-1315-SMY-SCW

ARTHUR STANLEY,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff's Motion for Leave to Appeal in forma
pauperis (Doc. 29) and Motion to Dismiss Notice of Appeal (Doc. 34). On January 26, 2016, the
Court remanded this case back to state court in St. Clair County, Illinois (Doc. 26). Plaintiff
filed his Notice of Appeal on January 29, 2016 (Doc. 28).
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. An
order remanding a case to state court based on a lack of subject-matter jurisdiction or defect in
the removal procedure is not reviewable on appeal, regardless of whether the decision is correct.

See Powerex Corp. v. Reliant Entergy Services, Inc., 551 U.S. 224 (2007).

Accordingly,

Plaintiff’s Motion for Leave to Appeal in forma pauperis is DENIED.
Plaintiff also filed a Motion to Dismiss his Notice of Appeal which the Court construes as
a Voluntary Dismissal of his Notice of Appeal pursuant to FRAP 42(a). Federal Rule of
Appellate Procedure 42(a) provides that a District Court may dismiss an appeal before an appeal
has been docketed by the circuit clerk.

In this case, the Seventh Circuit Clerk docketed

Plaintiff's appeal on February 1, 2016 (Doc. 32) and Plaintiff filed his Motion to Dismiss Notice
of Appeal on February 5, 2016 (Doc. 34). Therefore, the Court cannot dismiss Plaintiff's Notice
of Appeal. Accordingly, Plaintiff's Motion to Dismiss Notice of Appeal is DENIED.

IT IS SO ORDERED.
DATE: April 18, 2016

s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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