Slater v. Lemens et al

Filing 22

ORDER signed by Judge J P Stadtmueller on 3/12/10 denying 20 plaintiff's Motion for Leave to Proceed in forma pauperis on appeal because this court certifies that such appeal has been taken in bad faith; the plaintiff shall forward to the Clerk of Court the sum of $455.00 as the full filing fee in this appeal by 3/25/10. See Order. (cc: plaintiff, Warden of Redgranite 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
A N T W A N SLATER, P l a i n t if f, v. K A T H Y LEMENS, RICHARD HEIDORN, MD, J E A N A N N E GREENW O O D , MICHAEL BAENE, W IL L IA M POLLARD, HOLLY PUHL, M IC H E L L E CUMMINS, W A R D E N LARRY JENKINS, M A T T H E W J. FRANK, RICK RAEMISCH, J A N E DOE, and JOHN DOE, D e fe n d a n ts . C a s e No. 08-C-1037

ORDER
T h e pro se plaintiff, a state prisoner at all relevant times, brought a civil action in this court under 42 U.S.C. § 1983, alleging that his civil rights were violated. On M a rc h 31, 2009, the plaintiff was granted leave to proceed in forma pauperis. H o w e ve r, by the same order, this case was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. On the same day, judgment was entered d is m is s in g the action. The plaintiff filed a motion for reconsideration of the dismissal o f his complaint, which the court construed as a motion to alter judgment under F e d e ra l Rule of Civil Procedure 59(e) and denied. The plaintiff appealed, and c u rre n tly before the court is the plaintiff's request to proceed in forma pauperis on a p p e a l.

U n d e r the Federal Rules of Appellate Procedure, a party who has been g ra n te d leave to proceed in forma pauperis in the district court may proceed in forma p a u p e r is on appeal unless the district court certifies that the appeal is not taken in g o o d faith or determines that the party is otherwise not entitled to proceed in forma p a u p e ris . Fed. R. App. P. 24(a)(3); see also 28 U.S.C. § 1915(a)(3). An appeal t a k e n in "good faith" is one that seeks review of any issue that is not frivolous, m e a n in g that it involves "legal points arguable on their merits." Howard v. King, 707 F .2 d 215, 219-20 (5th Cir. 1983) (quoting Anders v. California, 386 U.S. 738 (1967)); s e e also Coppedge v. United States, 369 U.S. 438, 445 (1962). To act in bad faith m e a n s to sue on the basis of a claim that no reasonable person could suppose to h a ve any merit. See Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (holding th a t an appeal in a frivolous suit cannot be "in good faith" under 28 U.S.C. § 1915(a)(3) because "good faith" must be viewed objectively). Thus, the existence o f any nonfrivolous issue on appeal is sufficient to require the court to grant the p e t it io n . In support of his petition for leave to proceed in forma pauperis on appeal, the p la in tiff inexplicably contends that he did not have three "strikes" and that the court, th e re fo re , should have allowed him to proceed in forma pauperis. See 28 U.S.C. § 1915(g). He further argues that, in any event, he should have been allowed to p ro c e e d in forma pauperis because he is under imminent danger of serious physical in ju ry and thus falls under the exception to the three-strikes rule. Id. However, as -2-

in d ic a te d , the plaintiff was not denied in forma pauperis status at the district court le ve l. Rather, the court reviewed the complaint allegations and dismissed the c o m p la in t for failure to state a claim. In addition, it appears that he only had one "s trik e " at the time he filed the complaint and that, with the dismissal of his complaint in this case for failure to state a claim, he now has accumulated two strikes. In Lee, the Seventh Circuit Court of Appeals held that "good faith" for p u rp o s e s of § 1915 is the common "legal meaning of the term, in which to sue in bad fa ith means merely to sue on the basis of a frivolous claim, which is to say a claim th a t no reasonable person could suppose to have any merit." 209 F.3d at 1026. A fte r reviewing the plaintiff's claims, in light of Lee, this court concludes that the p la in tiff's appeal should be certified as not having been taken in good faith because n o reasonable person could conclude that the claims advanced by the plaintiff have a n y merit. Thus, the plaintiff's request to proceed in forma pauperis on appeal is d e n ie d . However, the plaintiff incurred the filing fee by filing the notice of appeal. N e w lin v. Helman, 123 F.3d 429, 433-34 (7th Cir. 1997), rev'd on other grounds by, W a lk e r v. O'Brien, 216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209 F.3d 1025 (7 th Cir. 2000). The fact that this court is denying the request to proceed in forma p a u p e r is on appeal means that the full filing fee of $455.00 is due within 14 days of th is order. Id.; Seventh Circuit Rule 3(b). Failure to pay in full within the time limits w ill result in a dismissal. Newlin, 123 F.3d at 434. -3-

IT IS, THEREFORE, ORDERED that the plaintiff's motion for leave to proceed in forma pauperis on appeal (Docket #20) be and the same is hereby DENIED b e c a u s e this court certifies that such appeal has been taken in BAD FAITH. IT IS FURTHER ORDERED that by March 25, 2010, the plaintiff shall forward to the Clerk of Court the sum of $455.00 as the full filing fee in this appeal. The p la in tiff's failure to comply with this order will result in dismissal of this appeal. The p a ym e n t shall be clearly identified by the case name and number assigned to this a c tio n . 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 12th day of March, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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