Poff v. Pollard et al

Filing 80

ORDER signed by Judge J.P. Stadtmueller on 5/25/2018 DENYING 76 Plaintiff's Motion for Leave to Proceed in Forma Pauperis on Appeal. (cc: all counsel, via mail to Jeff Poff at Wisconsin Secure Program Facility and to PLRA Attorney) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFF POFF,

v.

Plaintiff,

JOHN SCHETTLE, MAN LEE,
AMANDA COLE, and JASON
JACKSON,

Case No. 15-CV-954-JPS
7th Circuit Case No. 18-2157

ORDER

Defendants.
On May 22, 2017, Defendants filed a motion for summary judgment
as to Plaintiff’s claims that they were deliberately indifferent to his serious
medical needs. (Docket #59). Plaintiff responded, but did so in a fashion
that was not in compliance with the federal or local rules of civil procedure
governing summary-judgment practice. See (Docket #66, #67); Fed. R. Civ.
P. 56; Civ. L. R. 56(b)(2). As a result, the Court determined that all of
Defendants’ proffered facts were undisputed, and on the basis of those
undisputed facts, the Court was obliged to grant summary judgment to
Defendants. See (Docket #70 at 2–19). The Court issued its order and
judgment dismissing this action on June 23, 2017. (Docket #70, #71).
Nearly ten months later, on April 2, 2018, Plaintiff filed a motion to
alter or amend the Court’s judgment, arguing that his failure to make a
proper summary judgment submission shows that he should have been
appointed counsel, particularly after his jailhouse lawyer was transferred
to another institution. (Docket #72 at 1). He also appeared to dispute the
Court’s substantive rulings, contending that the Court inappropriately
dismissed his complaints of pain from the tooth injury that underlie this
case. Id. at 2. The Court construed the motion as seeking relief under Federal

Rules of Civil Procedure 59(e) and 60(b), and it denied the motion in an
order dated April 9, 2018. (Docket #73).
Plaintiff filed a notice of appeal on May 23, 2018, seeking to appeal
both the Court’s June 23, 2017 judgment and its April 9, 2018 order denying
him relief from that judgment. (Docket #74). He also filed a motion for leave
to use funds from his release account to pay the appellate initial partial
filing fee (“IPFF”). (Docket #76); 28 U.S.C. § 1915(b)(1). However, the Court
cannot assess an IPFF on appeal unless and until Plaintiff is granted leave
to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915. Plaintiff
has not asked for or been granted such leave. However, to ensure
expeditious resolution of the matter of the appellate fee, the Court will
construe Plaintiff’s filing as including a request for leave to proceed in forma
pauperis on appeal. For the reasons stated below, the Court will deny that
request.
Plaintiff, a prisoner proceeding pro se, may not proceed in forma
pauperis on appeal if the Court certifies in writing that the appeal is not
taken in “good faith.” 28 U.S.C. § 1915(a)(3). To determine whether a
prisoner takes an appeal in “good faith,” the Court must determine whether
“a reasonable person could suppose that the appeal has some merit.” Walker
v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000); Lee v. Clinton, 209 F.3d 1025, 1026
(7th Cir. 2000). An appeal is taken in “good faith” when it seeks review of
an issue that is not clearly frivolous. Lee, 209 F.3d at 1026.
Plaintiff’s notice of appeal gives no detail regarding the alleged
errors requiring appellate review. See (Docket #74). His motion for leave to
proceed in forma pauperis on appeal is likewise devoid of any mention of the
findings of the Court which he plans to challenge on appeal. See (Docket
Page 2 of 4

#76 at 1). This dearth of information makes it impossible for this Court to
find that the appeal has any merit.
Moreover, the Court does not independently discern any reversible
error it committed in dismissing Plaintiff’s claims or his motion to alter or
amend the judgment. First, his case was undermined in large part due to
his own failure to uphold his obligations as a litigant, including responding
appropriately to Defendants’ motion for summary judgment. Second, the
Court properly denied Plaintiff’s late-coming motion for relief from the
judgment, which simply rehashed previously stated arguments and made
threadbare assertions that appointment of counsel was warranted. Absent
any suggestion that these rulings were erroneous, the Court finds that
Plaintiff’s appeal is wholly without merit. Finally, it is worth noting that
Plaintiff filed his notice of appeal well after the expiration of the period in
which to do so afforded by Federal Rule of Appellate Procedure 4, which
will likely doom his appeal no matter its merit. See Fed. R. App. 4(a)(1)(A).
For these reasons, the Court must deny Plaintiff’s request for leave to
appeal in forma pauperis.
Because the Court certifies that the appeal is not taken in good faith,
the Court provides the following information to Plaintiff regarding
proceeding before the Seventh Circuit. Plaintiff will not be able to proceed
on appeal without prepayment of the filing fee unless the Court of Appeals
gives him permission to do so. Plaintiff has thirty (30) days from the date of
this Order to request that the Seventh Circuit review the Court’s denial of
his request for leave to appeal in forma pauperis. Fed. R. App. P. 24. If
Plaintiff requests review by the Seventh Circuit, he must include an
affidavit and statement of issues he intends to present on appeal, pursuant
Page 3 of 4

to Federal Rule of Appellate Procedure 24(a). He must also provide a copy
of this Order, in addition to the notice of appeal he previously filed. If
Plaintiff does not request review of this Order, the Seventh Circuit may
choose not to address the Court’s denial of Plaintiff’s motion; instead, it
may require Plaintiff to pay the full filing fee before it considers his case.
Failure to pay a required fee may result in dismissal of the appeal.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to appeal without
prepayment of the filing fee (Docket #76) be and the same is hereby
DENIED; and
IT IS FURTHER ORDERED that a copy of this order be sent to
PLRA Attorney, United States Court of Appeals for the Seventh Circuit, 219
S. Dearborn Street, Rm. 2722, Chicago, Illinois 60604.
Dated at Milwaukee, Wisconsin, this 25th day of May, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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