McIntosh v. Lindsey et al

Filing 162

ORDER: Plaintiff's Motion for New Trial (Doc. 159 ) is DENIED. Plaintiff's Motions to Proceed IFP on Appeal (Docs. 153 and 161 ) are GRANTED. Accordingly, pursuant to 28 U.S.C. Section 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $42.37. The Clerk is DIRECTED to mail a copy of this Order to Plaintiff and to the Trust Fund Officer at the Western Illinois Correctional Center upon entry of this Order. Signed by Judge David W. Dugan on 5/17/21. (bps)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL MCINTOSH,
Plaintiff,
vs.
CHRISTOPHER LINDSEY,
Defendant.

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Case No. 16-cv-927-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter is before the Court on Plaintiff’s Motions for Leave to Proceed in forma
pauperis (“IFP”) on appeal (Docs. 153 and 161) and Motion for New Trial (Doc. 159). A
jury found against Plaintiff on his claims against Defendant, and Plaintiff filed a Notice
of Appeal (Doc. 152).
Motions for IFP
Plaintiff filed his first Motion for IFP on Appeal without specifying the grounds
for his appeal. The Court ordered Plaintiff to file a supplement to his Motion “giving a
short, plain statement of the reason or reasons he is appealing his case” so that it could
evaluate whether the appeal was taken in good faith.1 (Doc. 157). Plaintiff filed a

See Celske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (“In cases such as this, where the
appellant was authorized to proceed in forma pauperis in the district court, a district judge who
after receiving the notice of appeal doubts that it is in good faith should, before yanking the
appellant's IFP status, notify the appellant of the impending change of status and give him an
opportunity to submit a statement of his grounds for appealing.”)

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supplement (Doc. 158) and then a second Motion for IFP citing those same grounds (Doc.
161). Upon consideration of the cited grounds, the Court is cannot certify that Plaintiff’s
appeal is entirely devoid of good faith.
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). Plaintiff was previously permitted leave to proceed
IFP on the underlying case. (Doc. 6). As such, he is entitled to proceed IFP on the appeal
unless prohibited by statute or this Court certifies that the appeal is not taken in good
faith. Fed. R. App. P. 24(a)(3). To determine that an appeal is in good faith, a court need
only 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) (citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th
Cir. 2000)).
Plaintiff lists four issues he is appealing:
1. Appointed counsel “did not have relevant facts ready for the jury or the
Court,” did not call a witness due to “lack of investigation” and did not have a
medical professional witness;
2. The jurors were all Caucasian;
3. Defense witness Adams’ testimony “contradicted” his written report; and
4. “Objections that were made”.

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First, ineffective assistance of counsel is not a valid basis for appeal in a civil trial.
See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001) (“[I]t is well established that an
attorney's shortcomings do not entitle his client to a new trial in a civil case.”). As such,
errors of strategy or preparation by Plaintiff’s counsel are not appealable.
As explained in the Court’s previous Order regarding the venire’s racial
composition, Plaintiff forfeited any challenge to the venire composition on statutory
grounds, both as untimely and lacking the required evidence. 28 U.S.C. § 1867(a) and (d).
On constitutional grounds, the standards for challenging venire selection under the
Seventh Amendment are not clear. However, under the standard applied for Sixth
Amendment challenges in criminal trials, a prima facie violation of the right to a jury pool
selected on a non-discriminatory basis would require a litigant to show (1) that the group
alleged to be excluded is a “distinctive” group in the community; (2) that the
representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of this group in the jury-selection
process. Johnson v. McCaughtry, 92 F.3d 585, 590 (7th Cir. 1996) (citing Duren v. Missouri,
439 U.S. 357 (1979)). Plaintiff did not adduce any evidence on any of these factors, other
than a bare allegation that all of the venirepersons looked white. This is inadequate. See
United States v. Neighbors, 590 F.3d 485, 491 (7th Cir. 2009) (“[T]he complete lack of
African–Americans on the venire alone is insufficient to satisfy the third prong of the
Duren analysis when the venire is randomly selected from voter lists pursuant to an
authorized plan.”). As the standards for protection of constitutional rights in criminal
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trials are generally equal (or more favorable) to a litigant than those in a civil context,
Plaintiff’s failure to meet the Sixth Amendment standard seems to doom any challenge
under the Seventh Amendment.
Plaintiff alleges that nonparty witness Adams’ testimony was inconsistent with
the written incident report he drafted. The Court interprets this as a challenge to the
sufficiency of the evidence to support the jury verdict. A prior inconsistent statement
by Adams would go to his credibility. “[S]ince the credibility of witnesses is peculiarly
for the jury, it is an invasion of the jury's province to grant a new trial merely because
the evidence was sharply in conflict” Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir.
2012).
Finally, Plaintiff alleges some unspecified issue with objections made at trial. A
reasonable person could suppose that an appeal on that ground has some merit, although
Plaintiff fails to state what objections are at issue. As such, Plaintiff’s Motions to Proceed
IFP on Appeal are GRANTED.
Motion for New Trial
Federal Rule of Civil Procedure 59(a)-(d) governs motions for new trial. Such a
motion “must be filed no later than 28 days after the entry of judgment.” Fed. R. Civ. P.
59(b). A court may not extend this deadline. Fed. R. Civ. P. 6(b)(2).
Judgment was entered in this case on March 31, 2021. (Doc. 151). Plaintiff filed
his Motion for New Trial on May 10, 2021, 40 days later. As such, it is untimely and must
be DENIED.
Disposition
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Plaintiff’s Motion for New Trial (Doc. 159) is DENIED. Plaintiff’s Motions to
Proceed IFP on Appeal (Docs. 153 and 161) are GRANTED. Accordingly, pursuant to 28
U.S.C. Section 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $42.37. The
agency having custody of Plaintiff is directed to forward the initial partial filing fee from
Plaintiff's account to the Clerk of Court upon receipt of this Order. Plaintiff shall make
monthly payments of 20% of the preceding month’s income credited to Plaintiff’s prison
trust fund account (including all deposits to the inmate account from any source) until
the $505.00 filing and docketing fee is paid in full. The agency having custody of Plaintiff
shall forward payments from Plaintiff’s account to the Clerk of this Court each time the
amount in the account exceeds $10 until the $505.00 filing fee is paid. Payments shall be
mailed to: Clerk of the Court, United States District Court for the Southern District of
Illinois, 750 Missouri Avenue, East St. Louis, Illinois 62201. The Clerk is DIRECTED to
mail a copy of this Order to Plaintiff and to the Trust Fund Officer at the Western Illinois
Correctional Center upon entry of this Order.

IT IS SO ORDERED.
DATED: May 17, 2021
__________________________
United States District Judge

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