Balsewicz v. Bartow et al

Filing 86

ORDER signed by Judge J P Stadtmueller on 4/9/2019: DENYING 80 Plaintiff's Motion for Leave to Appeal Without Prepayment of the Filing Fee and DENYING 82 Plaintiff's Motion to Proceed on the Original Record Without an Appendix. (cc: all counsel, via mail to Plaintiff at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN H. BALSEWICZ, also known as
MELISSA BALSEWICZ,
Plaintiff,
v.
CRAIG BLUMER, SGT. DARRYL
FRANKLIN, EDWARD KREMER,
GERALD LENNOP, MICHAEL
HELMEID, LINDSAY DANFORTH,
JOHN BESSERT, BRIAN SCHRAA,
JOHN LENZ, JENNIFER SRNKA, and
STEVE SCHMIDT,

Case No. 17-CV-360-JPS
7th Cir. Case No. 19-1619

ORDER

Defendants.
The plaintiff, a prisoner proceeding pro se, brought this action
alleging that her civil rights were violated. On March 26, 2019, the Court
dismissed this action pursuant to the defendants’ motion for summary
judgment. (Docket #76 and #77). On April 4, 2019, the plaintiff filed a notice
of her intent to appeal that ruling. (Docket #78). On April 4, 2019, the
plaintiff filed a motion to proceed on her appeal without prepayment of the
filing fee, or in forma pauperis. (Docket #80).
Under the Prison Litigation Reform Act (“PLRA”), 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 an action or 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 (“IPFF”) of twenty
percent of the average monthly deposits to the prisoner’s prison account or
average monthly balance in the prisoner’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 IPFF 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 from the agency in months when the prisoner’s preceding month’s
income is $10.00 or less. Id.
The plaintiff may not proceed without prepayment of the filing fee
on appeal, though, 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 the
plaintiff takes the 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); see also 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. This is the case when a reasonable person could suppose the
issue to have some legal merit. Id.
In this case, the plaintiff’s appeal is not taken in good faith, and
therefore her motion to proceed in forma pauperis must be denied. The
plaintiff offers no grounds for appeal in her notice of appeal or in her instant
motion, other than to say she is appealing the Court’s “entire judgment and
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order.” See (Docket #78 at 1). She does not point to any specific error of law
or fact that she believes the Court made in dismissing her case. No
reasonable person could suppose that the instant appeal has merit without
knowing what is being appealed or why.
Because the Court certifies that the appeal is not taken in good faith,
the Court provides the following information to the plaintiff regarding
proceedings before the Seventh Circuit. The plaintiff will not be able to
proceed on appeal without paying the filing fee, unless the court of appeals
gives her permission to do so. The plaintiff has 30 days from the date of this
order to request that the Seventh Circuit review the Court’s denial of her
motion for leave to appeal without prepayment of the filing fee on appeal.
Fed. R. App. P. 24. If the plaintiff requests review by the Seventh Circuit,
she must include an affidavit and statement of issues she intends to present
on appeal, pursuant to Fed. R. App. P. 24(a). She must also provide a copy
of this order, in addition to the notice of appeal she previously filed. If the
plaintiff does not request review of this order, the Seventh Circuit may
choose not to address the Court’s denial of her motion; instead, it may
require the plaintiff to pay the full filing fee before it considers her case.
Failure to pay a required fee may result in dismissal of the appeal.
Finally, the plaintiff has also filed a motion requesting to proceed on
the original record without including an appendix. (Docket #82). That
request must be directed to the Seventh Circuit. The motion filed in this
Court will, therefore, be denied.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to appeal
without prepayment of the filing fee (Docket #80) be and the same is hereby
DENIED;
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IT IS FURTHER ORDERED that the plaintiff’s motion to proceed
on the original record without an appendix (Docket #82) be and the same is
hereby DENIED; and
IT IS FURTHER ORDERED that that a copy of this order be
electronically provided to PLRA Attorney, United States Court of Appeals
for the Seventh Circuit, through the court’s electronic case filing system.
Dated at Milwaukee, Wisconsin, this 9th day of April, 2019.
BY THE COURT:

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

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