Torres-Flores v. Spiller et al

Filing 40

MEMORANDUM AND ORDER, denying 38 MOTION for Leave to Appeal in forma pauperis filed by Pablo Torres-Flores. Signed by Judge J. Phil Gilbert on 7/10/2018. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PABLO TORRES-FLORES,
Plaintiff,
v.

Case No. 3:16-cv-01253-JPG-RJD

MICHAEL D. SCOTT,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Torres-Flores has filed a motion for leave to appeal in forma pauperis. (ECF No.
38.) A federal court may permit a party to proceed on appeal without full pre-payment of fees
provided that 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 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).
Torres-Flores’s appeal is frivolous, so the Court cannot grant his motion. As more fully
explained in this Court’s order dismissing his case (ECF No. 31), Torres-Flores claims that he
suffers from a serious medical condition because a finger on his right hand locks up at times. But
at his deposition, he testified that he was able to perform numerous activities with his right hand
without issue—including shaving, writing, preparing meals, going to the gym, delicately and
precisely operating a sewing machine at his work assignment at the prison, and more. (TorresFlores Dep. 51:8–52:12, 15:7-22, 16:1-7, 11-24, ECF No. 22-4.) He also testified that his
primary issue is not with pain, but rather with the finger locking up sometimes. (Id. at 29:21-23.)
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Torres-Flores then contradicted that testimony in his objections to the magistrate judge’s report
and recommendations, and the Court will not presume that Torres-Flores committed perjury at
his deposition. No reasonable person could argue that Torres-Flores’s issue constitutes a serious
medical condition, so the Court DENIES his motion for leave to appeal in forma pauperis. (Doc.
38.)
IT IS SO ORDERED.
DATED: JULY 10, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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