Jackson v. Murphy et al

Filing 226

ORDER signed by Chief Judge Pamela Pepper on 7/24/2020. 207 Plaintiff's motion to proceed without prepaying appellate filing fee GRANTED; within 30 days plaintiff to pay $30.74 initial partial filing fee in appeal; once initial payment is made, agency having custody of plaintiff to collect $474.26 balance of appellate filing fee from plaintiff's prison trust account under 28 USC §1915(b)(2). 210 213 Plaintiff's second and third motions to proceed without prepaying appellate filing fee DENIED as moot. (cc: all counsel, via mail to Keith Jackson and Warden at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KEITH JACKSON,
Plaintiff,
v.

Case No. 17-cv-194-pp
Appeal No. 20-2062

DR. PATRICK MURPHY, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING APPELLATE FILING FEE (DKT. NO. 207) AND
DENYING AS MOOT PLAINTIFF’S SECOND AND THIRD MOTIONS FOR
LEAVE TO PROCEED WITHOUT PREPAYING APPELLATE FILING FEE
(DKT. NOS. 210, 213)
______________________________________________________________________________
On June 1, 2020, the court issued an order dismissing this case. Dkt.
No. 194. The plaintiff filed a “motion for reconsideration” and the court denied
that motion on July 24, 2020. Dkt. No. 225. The plaintiff filed a notice of
appeal on June 19, 2020.1 Dkt. No. 200. He has filed three motions for leave to
proceed with his appeal without prepaying the appellate filing fee. Dkt. Nos.
207, 210, 213.

On June 29, 2020, the plaintiff filed another motion to appeal without
prepaying the filing fee, which the Clerk’s Office treated as a second notice of
appeal, and appeal number 20-2138 was opened. Dkt. No. 212. On June 30,
2020, the Court of Appeals for the Seventh Circuit administratively closed 202138 because two separate appeals were not necessary. Jackson v. Murphy,
No. 20-2138 (7th Cir. June 30, 2020).
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Under the Prison Litigation Reform Act, a prisoner must pay the
applicable filing fees in full for a civil case. 28 U.S.C. §1915(b). If a prisoner
does not have the money to pay the $505.00 appellate filing fee in advance, he
can ask the court for permission to proceed without prepaying the fee. For the
court to consider such a request, the prisoner must complete a petition and
affidavit 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 partial filing fee of twenty
percent of the average monthly 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 prisoner pays the initial fee, he must make monthly payments
of twenty percent of the preceding month’s income until he pays the filing fee in
full. 28 U.S.C. §1915(b)(2). The agency that has custody of the prisoner will
collect the money and send payments to the court.
There are three grounds for denying a prisoner appellant’s request to
proceed without prepaying the filing fee: the prisoner has not shown that he is
indigent, the prisoner filed the appeal in bad faith or the prisoner has three
strikes. See 28 U.S.C. §§1915(a)(2)-(3), (g). The court finds that the plaintiff has
established that he is indigent and that he has not accrued three strikes. That
leaves only the question of whether the plaintiff filed this appeal in good faith.

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If a court allowed a party to proceed without prepaying the filing fee in
the district court, that party may proceed without prepaying the filing fee on
appeal without further authorization, unless the district court certifies that the
appeal is not taken in good faith or determines that the party is otherwise not
entitled to proceed without prepaying the fee. Fed. R. App. P. 24(a). See also
Celske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (“. . . a plaintiff who . . .
was allowed to proceed in forma pauperis in the district court retains his IFP
status in the court of appeals unless there is a certification of bad faith.”).
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 appeal taken in “good faith” is one that seeks review of any issue
that is not frivolous, meaning that it involves “legal points arguable on their
merits.” Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983) (quoting Anders
v. California, 386 U.S. 738 (1967)); see also Coppedge v. United States, 369
U.S. 438, 445 (1962). On the other hand, an appeal taken in bad faith is one
that is based on a frivolous claim, that is, a claim that no reasonable person
could suppose has any merit. Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir.
2000).
The court does not find any indication that the plaintiff did not take this
appeal in good faith. The court will grant the motion to proceed on appeal
without prepaying the filing fee.
The plaintiff has filed a certified copy of his prison trust account
statement for the six-month period immediately preceding the filing of his
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notice of appeal. A review of this information reveals that the plaintiff must pay
an initial partial filing fee of $30.74, as well as additional payments under 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 GRANTS the plaintiff’s motion for leave to appeal without
prepaying the filing fee. Dkt. No. 207.
The court DENIES AS MOOT the plaintiff’s second and third motions for
leave to appeal without prepaying the filing fee. Dkt. Nos. 210, 213.
The court ORDERS that within thirty days of the date of this order, the
plaintiff shall forward to the Clerk of Court the sum of $30.74 as the initial
partial filing fee for this appeal. If the clerk does not receive that amount by the
end of the thirtieth day, the court of appeals may dismiss the appeal. The
plaintiff shall identify the payment by the case name and appellate case
number (Case No. 20-2062).
The court will send a copy of this order to the officer in charge of the
agency where the plaintiff is confined.
The court ORDERS that after the plaintiff has paid the initial filing fee,
the agency that has custody of the plaintiff must collect from his institution
trust account the $474.26 balance of the filing fee 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 prisoner’s trust account and
forwarding payments to the Clerk of Court each time the amount in the
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account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The agency
must clearly identify the payments by the case name and number. If the
plaintiff transfers to another institution—county, state or federal—the
transferring institution must forward a copy of this order, along with the
plaintiff’s remaining balance, to the receiving institution.
The court will provide a copy of this order to PLRA Attorney, United
States Court of Appeals for the Seventh Circuit, through the court’s electronic
case filing system.
Dated in Milwaukee, Wisconsin this 24th day of July, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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