Wise v. Kenosha County Sheriff et al

Filing 95

ORDER signed by Judge J P Stadtmueller on 11/6/09 as follows: denying 85 plaintiff's motion to stay the collection of costs; granting 86 plaintiff's motion for leave to proceed in forma pauperis on appeal; that on or before 12/6/09 plai ntiff shall forward to the Clerk of Court the sum of $42.00 as the initial partial filing fee in this appeal; the balance of the filing fee shall be paid from the plaintiff's prison trust account in monthly payments as specified. See Order. (cc: plaintiff, Warden of Petersburg Federal Correctional Institution, AAG Corey F. Finkelmeyer, PLRA Attorney of U.S. Court of Appeals, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
E R IC R. W IS E , P l a i n t if f, v. D A V ID BETH, Kenosha County Sheriff, C O R P O R A L KAISER, CORPORAL REID, D O N N A GAYHART, and GARY PRESTON, D e fe n d a n ts . C a s e No. 07-CV-1150

ORDER
T h e pro se plaintiff, a prisoner at all relevant times, brought a civil action in this c o u r t under 42 U.S.C. § 1983, alleging that his civil rights were violated. On March 1 4 , 2008, the plaintiff was granted leave to proceed in forma pauperis. On

S e p te m b e r 15, 2009, this court issued an order granting defendants' motion for s u m m a ry judgment. On that same day judgment was entered dismissing the action. T h e plaintiff appealed, and currently before the court is the plaintiff's request for le a ve to proceed in forma pauperis on appeal, as well as his motion to stay the c o lle c tio n of costs. B i ll of Costs O n October 9, 2009, the plaintiff objected to the bill of costs proposed by the d e fe n d a n ts , and requested that collection of the costs be stayed until after his appeal is concluded. However, the Clerk of Courts taxed costs in the amount of $129.15 o n October 26, 2009, and there is no requirement that their collection be stayed.

S e e Lorenz v. Valley Forge Ins. Co., 23 F.3d 1259, 1260 (7th Cir. 1994) ("a district c o u rt may award costs even while the substantive appeal is pending"). The

d e fe n d a n ts have not stipulated to a stay, and the local rules of this district disfavor a n y delay in taxing costs. See Civil L.R. 54.1(a) (E.D. W is .) ("The parties, by filing a stipulation with the Clerk of Court's office, may delay the filing of the bill of costs a n d taxing until after the decision by the Court of Appeals or Supreme Court when a n appeal is taken. Absent such a filed stipulation or a court order, the appeal must n o t delay the taxing of costs."). Therefore, the plaintiff's motion for a stay will be d e n ie d . In Forma Pauperis Status on Appeal T h e re are three grounds for denying in forma pauperis status to a prisoner a p p e lla n t: the prisoner has not established indigence; the appeal is in bad faith; or th e prisoner has three strikes. See 28 U.S.C. §§ 1915(a)(2)-(3), (g). A party who h a s been granted leave to proceed in forma pauperis in the district court may p r o c e e d in forma pauperis on appeal without further authorization unless the district c o u rt certifies that the appeal is not taken in good faith or determines that the party is otherwise not entitled to proceed in forma pauperis. Fed. R. App. P. 24(a). A district court should not apply an inappropriately high standard when making a good faith determination. Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998). An a p p e a l taken in "good faith" is one that seeks review of any issue that is not frivo lo u s , meaning that it involves "legal points arguable on their merits." Howard v. -2-

K in g , 707 F.2d 215, 219-20 (5th Cir. 1983) (quoting Anders v. California, 386 U.S. 7 3 8 (1967)); see also Coppedge v. United States, 369 U.S. 438, 445 (1962). On the o th e r hand, an appeal taken in bad faith is one that is based on a frivolous claim, th a t is, a claim that no reasonable person could suppose has any merit. Lee v. C lin to n , 209 F.3d 1025, 1026 (7th Cir. 2000). In considering the plaintiff's request to proceed in forma pauperis before the d is tric t court, it was determined that the plaintiff met the indigence requirement of 28 U .S .C . § 1915(a)(1) and that his claims were neither malicious nor frivolous. As a re s u lt, this court does not find any indication that the plaintiff's appeal is not taken in good faith. Thus, the court will grant the plaintiff's request to proceed in forma p a u p e ris on appeal. U n d e r the Prison Litigation Reform Act (PLRA), a prisoner must pay the a p p lic a b le filing fees in full for a civil action. 28 U.S.C. § 1915(b). If a prisoner does n o t have the money to pay the $455.00 filing fee in advance for an appeal, he can re q u e s t leave to proceed in forma pauperis. To proceed with an action or appeal in fo rm a pauperis, the prisoner must complete a petition and affidavit to proceed in fo rm a pauperis and return it to the court along with a certified copy of the prisoner's tru s t account statement showing transactions for the prior six months. 28 U.S.C. § 1915(a)(2). The court must assess an initial filing fee of twenty percent of the a ve ra g e monthly deposits to the plaintiff's prison account or average monthly b a la n c e in the plaintiff's prison account for the six-month period immediately -3-

p re c e d in g the filing of the notice of appeal, whichever is greater. § 1915(b)(1).

28 U.S.C.

A fte r the initial fee is paid, the prisoner must make monthly payments of tw e n ty percent of the preceding month's income until the filing fee is paid in full. 28 U .S .C . § 1915(b)(2). The agency which has custody of the prisoner will collect the m o n e y and send payments to the court. No payment is required in months when the p ris o n e r's preceding month's income is $10.00 or less. Id. A lo n g with his request to proceed in forma pauperis, the plaintiff filed a c e rtifie d copy of his prison trust account statement for the six-month period im m e d ia te ly preceding the filing of his notice of appeal. A review of this information r e ve a ls that the plaintiff is required to pay an initial partial filing fee of $42.00. S u b s e q u e n t payments will be calculated and collected pursuant to 28 U.S.C. § 1915(b)(2). T h e plaintiff shall pay the initial partial filing fee of $42.00 to the clerk of this c o u rt within 30 days of the date of this order. Newlin v. Helman, 123 F.3d 429, 434 (7 th Cir. 1997), rev'd on other grounds by, Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2 0 0 0 ) and Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000). Failure to pay the initial p a rtia l filing fee within the time specified may result in dismissal of this appeal. N e w lin , 123 F.3d at 434. T h e PLRA also provides that if a prisoner files more than three actions or a p p e a ls which are dismissed as frivolous, malicious, or for failure to state a claim -4-

u p o n which relief can be granted, the prisoner will be prohibited from bringing any o th e r actions in forma pauperis unless the prisoner is in imminent danger of serious p h ys ic a l injury. 28 U.S.C. § 1915(g). In the event that this appeal is later dismissed fo r any of the above reasons, it will have an impact on the plaintiff's ability to bring o th e r actions in forma pauperis. A c c o r d in g ly , IT IS ORDERED that the plaintiff's motion to stay the collection of costs (D o c k e t #85) be and the same is hereby DENIED; and IT IS FURTHER ORDERED that the plaintiff's motion for leave to proceed in form a pauperis on appeal (Docket #86) be and the same is hereby GRANTED; and I T IS FURTHER ORDERED that by December 6, 2009, the plaintiff shall fo rw a rd to the Clerk of Court the sum of $42.00 as the initial partial filing fee in this a p p e a l. The plaintiff's failure to comply with this order may result in dismissal of this a p p e a l. The payment shall be clearly identified by the case name and number a s s ig n e d to this action; and IT IS FURTHER ORDERED that after the initial filing fee has been paid, the D ire c to r of the Bureau of Prisons or his designee shall collect from the plaintiff's p ris o n trust account the balance of the filing fee by collecting monthly payments from th e plaintiff's prison trust account in an amount equal to 20% of the preceding m o n th 's income credited to the plaintiff's trust account and forwarding payments to th e Clerk of Court each time the amount in the account exceeds $10.00 in -5-

a c c o rd a n c e with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified b y the case name and number assigned to this action; and IT IS FURTHER ORDERED that copies of this order be sent to the warden of th e institution where the plaintiff is confined, and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in 53707-7857, and to PLRA Attorney, United States Court of Appeals for th e Seventh Circuit, 219 S. Dearborn Street, Rm. 2722, Chicago, Illinois 60604. D a te d at Milwaukee, W is c o n s in , this November 6, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

-6-