Simpson v. Litscher et al

Filing 26

ORDER signed by Judge J.P. Stadtmueller on 5/30/2017 DENYING 21 Plaintiff's Motion for Leave to Appeal Without Prepayment of the Filing Fee. (cc: all counsel, via mail to Willie C. Simpson at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE C. SIMPSON,
Plaintiff,
v.
JON E. LITSCHER, SCOTT ECKSTEIN,
JOHN KIND, CAPTAIN SCHULTZ, LT.
ELSINGER, LT. VAHLAHAN, SGT.
KOELLER, SGT. MENNING, SGT.
ROZMARYNOSKI, SGT. HERT, C.O.
BRUNNER, C.O. GRABOWSKI, C.O.
BEBO, C.O. BONNIN, C.O. MEYER, C.O.
DELFOSSE, C.O. WEYCKER, C.O. TREML,
C.O. DIEDRICK, C.O. PEOTTER, C.O.
POTTS, C.O. VANDEVELDEN, C.O.
SCHEMECK, C.O. NEMETZ, C.O. REYES,
C.O. GUERRERO, C.O. LEWIS, C.O.
YANG, C.O. HEFFERNAN, C.O.
ROBEHHAGEN, J. PERTTU, C.O. PETER
BAUGH, C.O. AVERY, C.O. BRUSO, C.O.
TURCK, and JOHN DOES,

Case No. 17-CV-359-JPS

ORDER

Defendants.
On April 25, 2017, the Court screened Plaintiff’s complaint. (Docket
#14). Because his complaint alleged an implausible paranoid conspiracy, the
Court concluded that Plaintiff’s claims were factually frivolous and
dismissed the action in its entirety. (Docket #14 and #15). Plaintiff thereafter
filed a motion for reconsideration, which the Court denied. (Docket #18).
Plaintiff filed a notice of appeal as to both of these rulings on May 30, 2017.
(Docket #19). He also filed a motion for leave to proceed in forma pauperis

on appeal. (Docket #21). For the reasons stated below, the Court will deny
that motion.
Plaintiff, a prisoner proceeding pro se, may not proceed without
prepayment of the filing fee 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.
Initially, the Court notes that it has already certified that Plaintiff’s
appeal would not be taken in good faith absent bona fide arguments
supporting it. (Docket #14 at 12). Plaintiff’s recent submissions do not
supply such arguments. While his motion for leave to proceed in forma
pauperis on appeal recounts Plaintiff’s disagreement with the Court’s
rulings, nothing in it credibly suggests that the Court made reversible error.
As he did in motion for reconsideration, Plaintiff emphasizes that the
Court erroneously failed to credit his allegations that there exists a prisonwide policy enabling guards to deny him food and medication. See (Docket
#21 at 1–2). The Court has already explained that no such allegations are
present in his complaint, despite his insistence to the contrary. (Docket #18
at 3).1 Moreover, Plaintiff’s argument about a potential Monell claim does

To support his assertion, Plaintiff cites a single sentence from his
complaint in which he alleges that prison officials are required by Department of
Corrections (“DOC”) policy to provide food, medication, and mail to prisoners.
(Docket #21 at 3); (Docket #1 ¶ 7). Reliance on this allegation for a Monell claim is
misguided, however. Assuming Plaintiff had alleged a Monell claim, it would have
1

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not solve the real problem with his complaint—namely, that it is the
product of paranoid delusion and is, therefore, factually frivolous. See id. at
3–4; (Docket #14 at 9–11). As a result, the Court hews to its prior conclusion
that an appeal taken from its disposition of this matter is not taken in good
faith.
Finally, 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 without prepayment of the filing
fee on appeal. 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 to Fed. R. App. P. 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.

to be that there was a policy or practice allowing or encouraging guards not to give
him medication. The claim could not be that the guards simply violated an existing
policy. This distinction is important, as having a policy directed at denying
Plaintiff life’s necessities might be considered an action of the DOC itself, whereas
an individual decision to violate such a policy would be that person’s own,
separate wrongdoing. See Wragg v. Village of Thornton, 604 F.3d 464, 467–68 (7th
Cir. 2010).

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Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to appeal without
prepayment of the filing fee (Docket #21) be and the same is hereby
DENIED.
Dated at Milwaukee, Wisconsin, this 30th day of May, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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