Brown v. Milwaukee County Jail et al
Filing
53
DECISION and ORDER signed by Judge Pamela Pepper on 4/19/2016 DENYING 35 Plaintiff's Motion to Appoint Counsel ; DENYING 36 Plaintiff's Motion to Amend Complaint; DENYING 37 Plaintiff's Motion to Compel Discovery; GRANTING 40 Plaintiff's Motion for Leave to Appeal In Forma Pauperis; DENYING 43 Plaintiff's Motion to Amend Record; DENYING AS MOOT 49 Plaintiff's Motion for Leave to Appeal In Forma Pauperis, and DIRECTING Plaintiff to Forward $11.89 to Clerk of Court by May 16, 2016, as Initial Partial Filing Fee in Appeal. (cc: all counsel and copy sent to the plaintiff, Warden at Waupun Correctional Institution, and to PLRA Attorney by US Mail on 4/19/2016.) (kgw)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
v.
Case No. 15-cv-509-pp
Appeal No. 16-1622
MICHAEL J. HICKS, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION TO APPOINT
COUNSEL (DKT. NO. 35), DENYING PLAINTIFF’S MOTION TO AMEND
COMPLAINT (DKT. NO. 36), DENYING PLAINTIFF’S MOTION TO COMPEL
DISCOVERY (DKT. NO. 37), GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO APPEAL IN FORMA PAUPERIS (DKT. NO. 40), DENYING PLAINTIFF’S
MOTION TO AMEND RECORD (DKT. NO. 43), DENYING AS MOOT
PLAINTIFF’S MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS (DKT.
NO. 49), AND DIRECTING PLAINTIFF TO FORWARD $11.89 TO CLERK OF
COURT BY MAY 16, 2016, AS INITIAL PARTIAL FILING FEE IN APPEAL
______________________________________________________________________________
On January 12, 2016, the court screened the plaintiff’s §1983 complaint
under 28 U.S.C. § 1915A, determining that the plaintiff could not challenge his
criminal conviction in a federal civil rights action under §1983. Dkt. No. 21 at
12-14. The court also noted that the complaint contained brief allegations
suggesting that the plaintiff was trying to raise claims regarding his conditions
of confinement at the Milwaukee County Jail. The court told the plaintiff that if
he wanted the court to consider those allegations, he should file an amended
complaint with details about what happened, when it happened, and who was
involved. Id. at 14.
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The plaintiff filed both a motion for reconsideration of the court’s
screening order (Dkt. No. 24) and an amended complaint (Dkt. No. 25). On
March 17, 2016, the court denied the plaintiff’s motion for reconsideration of
the screening order. Dkt. No. 29. In that order, the court also determined that
the plaintiff could not proceed on his amended complaint because it simply
reiterated his original complaint allegations. Dkt. No. 29 at 5. The court noted
that the plaintiff had not provided any details about a potential conditions of
confinement claim at the Milwaukee County Jail. Id. Accordingly, the court
dismissed the case, and the clerk of court entered judgment on March 21,
2016. Dkt. No. 33.
On March 21, 2016, the plaintiff filed a notice of appeal of the court’s
March 17, 2016, order. Dkt. No. 30. On March 24, 2016, he filed a motion for
leave to appeal in forma pauperis. Dkt. No. 40. On April 5, 2016, the United
States Court of Appeals for the Seventh Circuit issued an order stating that on
April 4, 2016, the plaintiff also had filed a petition to appeal in forma pauperis
in the appellate court, and it ordered the clerk of the appellate court to transfer
the motion to the clerk of the district court for a ruling on the motion. Dkt. No.
48. So the clerk of the district court docketed a second motion to appeal in
forma pauperis on April 5, 2016. Dkt. No. 49. The clerk also docketed, along
with this motion, the prisoner’s trust fund account statement for the six-month
period before he filed his appeal. Dkt. No. 50.
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I.
MOTIONS FOR LEAVE TO APPEAL IN FORMA PAUPERIS (DKT. NOS.
40, 49)
On January 12, 2016, this court granted the plaintiff’s motion to proceed
in forma pauperis on the district court case. Dkt. No. 21. A plaintiff who was
allowed to proceed in forma pauperis in the district court does not need “further
authorization” to proceed in forma pauperis in the court of appeals, unless (a)
the district court certifies that the appeal wasn’t filed in good faith, or (b) a
statute says otherwise. Fed. R. App. P. 24(a)(3). In considering the plaintiff’s
request to proceed in forma pauperis before the district court, this court
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 result,
this court does not find any indication that the plaintiff’s appeal is not taken in
good faith. The remaining question is whether there is another statute that
requires the plaintiff to pay the appellate filing fee.
Under the Prison Litigation Reform Act, a prisoner must pay the
applicable filing fees in full for a civil action. 28 U.S.C. § 1915(b). If a prisoner
does not have the money to pay the $505.00 filing fee in advance for an appeal,
he or she can request leave to proceed in forma pauperis. To proceed with
district court lawsuit or an appeal in forma pauperis, the prisoner must
complete a petition and affidavit to proceed in forma pauperis and return it to
the court along with a certified copy of the prisoner’s trust 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 average monthly
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deposits to the plaintiff's prison account or average monthly balance in the
plaintiff's prison account for the six-month period immediately preceding the
filing of the notice of appeal, whichever is greater. 28 U.S.C. § 1915(b)(1).
After the initial fee is paid, the prisoner must make monthly payments of
twenty 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 money and send payments to the court. No payment is required in
months when the prisoner's preceding month's income is $10.00 or less. Id.
Along with his request to appeal in forma pauperis that he filed in the
Seventh Circuit, the plaintiff filed a certified copy of his prison trust account
statement for the six-month period immediately preceding the filing of his
notice of appeal. Dkt. No. 50. A review of this information reveals that the
plaintiff must pay an initial partial filing fee of $11.89, followed by the monthly
balance payments required by 28 U.S.C. § 1915(b)(2). Newlin v. Helman, 123
F.3d 429, 434 (7th Cir. 1997), rev’d on other grounds by, Walker v. O’Brien,
216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000).
The court will grant the plaintiff’s March 24, 2016 motion to appeal in forma
pauperis, Dkt. No. 40, and will set a deadline for him to pay the initial partial
appellate filing fee. The court will deny as moot the motion the plaintiff
originally filed in the Seventh Circuit; that motion is duplicative of the motion
he filed with this court. Dkt. No. 49.
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II.
OTHER MOTIONS FILED AFTER THE PLAINTIFF FILED HIS NOTICE
OF APPEAL
Since he filed his notice of appeal on March 21, 2016, the plaintiff has
filed several other motions. On March 23, 2016, he filed a motion asking the
court to appoint counsel. Dkt. No. 35. It appears that the plaintiff is asking this
district court to appoint counsel to represent him in the district court. Id.
Because the plaintiff has appealed this court’s decision to the court of appeals,
however, this court no longer has jurisdiction to rule on the substantive issues
in his case, and there is nothing for an attorney to do in the district court. The
court will deny this motion.
Also on February 23, 2016, the plaintiff filed a motion asking this court
to allow him to amend his complaint. Dkt. No. 36. Again, there is no longer a
substantive case pending before the district court; the plaintiff has appealed,
and the case now resides with the Seventh Circuit. A plaintiff cannot amend
his complaint after his case has been dismissed and he has appealed that
decision to a higher court. The court will deny this motion.
Again on March 23, 2016, the plaintiff filed a motion asking the court to
require the clerk of the Milwaukee County Circuit Court to provide him with
certain documents. Dkt. No. 37. The court has dismissed and closed the
plaintiff’s case; it is too late for him to request discovery. The court will deny
this motion.
On March 28, 2016, the plaintiff filed a motion asking the court to
amend the district court record. Dkt. No. 43. The plaintiff objected to the
identification of Michael J. Hicks as the “lead defendant,” and objected to this
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court’s dismissal of the complaint. Id. Again, because the plaintiff has appealed
to the Seventh Circuit, this court does not have the authority to decide that
motion; he must raise those issues with the Seventh Circuit. The court will
deny that motion.
III.
CONCLUSION
The court DENIES the plaintiff’s motion to appoint counsel. Dkt. No. 35.
The court DENIES the plaintiff’s motion to amend the complaint. Dkt.
No. 36.
The court DENIES the plaintiff’s motion to compel discovery. Dkt. No. 37.
The court GRANTS the plaintiff’s motion for leave to appeal in forma
pauperis. Dkt. No. 40.
The court DENIES the plaintiff’s motion to amend the record. Dkt. No.
43.
The court DENIES AS MOOT the motion the plaintiff filed in the Seventh
Circuit for leave to appeal in forma pauperis. Dkt. No. 49.
The court ORDERS that by May 16, 2016, the plaintiff shall forward to
the Clerk of Court the sum of $11.89 as the initial partial filing fee in this
appeal. The plaintiff’s failure to comply with this order may result in dismissal
of this appeal. The payment shall be clearly identified by the case name and
number assigned to this action.
The court ORDERS that after the initial filing fee has been paid, the
Secretary of the Wisconsin Department of Corrections or his designee shall
collect from the plaintiff’s prison trust account the balance of the filing fee
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($493.11) by collecting monthly payments from the plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income credited
to the plaintiff’s trust account and forwarding payments to the Clerk of Court
each time the amount in the account exceeds $10.00 in accordance with 28
U.S.C. § 1915(b)(2). The Secretary or his designee shall clearly identify the
payments by the case name and number assigned to the appeal (Appeal No.
16-1622).
The court will mail copies of this order to the Warden of the institution
where the plaintiff is confined (Waupun Correctional Institution), and to PLRA
Attorney, United States Court of Appeals for the Seventh Circuit, 219 S.
Dearborn Street, Rm. 2722, Chicago, Illinois 60604.
Dated in Milwaukee, Wisconsin this 19th day of April, 2016.
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