Harris v. Smith

Filing 39

ORDER signed by Judge Pamela Pepper on 5/14/2018. By 6/15/2018 petitioner to file trust account statement covering 10/1/2017 thru 3/31/2018; failure to file by deadline will result in denial of request to proceed without prepayment of filing fee and petitioner will be required to pay full $505 appellate filing fee. (cc: all counsel, via mail to Jeffrey Harris and Warden at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY HARRIS,
Petitioner/Appellant
v.

Case No. 17-cv-663-pp
Appeal No. 18-1754

JUDY SMITH, Warden,
Oshkosh Correctional Institution
Respondent/Appellee.
ORDER REQUIRING APPELLANT TO FILE HIS SIX-MONTH TRUST
ACCOUNT STATEMENT BY A DATE CERTAIN
On March 26, 2018, the court entered an ordered denying the appellant’s
request for habeas relief and dismissing the habeas petition. Dkt. No. 26. Two
weeks later, on April 9, 2018, the appellant filed a notice of appeal of the
court’s March 26, 2018 decision. Dkt. No. 26. That same day, the appellant
filed a motion for leave to appeal without prepayment of the filing fee. Dkt. No.
30. On April 16, 2018, the court of appeals referred the motion to this court,
dkt. no. 38, because the district court handles these requests in the first
instance, see Fed. R. App. P. 24(a)(1).
I.

Standard for Allowing Appellant To Proceed Without Prepaying the
Appellate Filing Fee
There are three grounds for denying a prisoner appellant’s request to

proceed without prepaying the filing fee: the prisoner has not established
indigence, the appeal is in bad faith, or the prisoner has three strikes. See 28
U.S.C. §§1915(a)(2)-(3), (g).

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A.

Indigence

If the district court granted a party leave to proceed without prepaying
the filing fee, that party may proceed without prepaying the filing fee in the
court of appeals without further authorization unless the district court certifies
that the party did not take the appeal in good faith, or determines that the
party is otherwise not entitled to proceed without prepaying the filing fee. Fed.
R. App. P. 24(a). See also, Delske v. Edwards, 164 F.3d 396, 398 (7th Cir.
1999) (“. . . . a plaintiff who . . . was allowed to proceed [without prepaying the
filing fee] in the district court retains his [indigent] status in the court of
appeals unless there is a certification of bad faith.”)
This court did not grant the appellant leave to proceed without paying
the filing fee when considering his habeas petition. He filed a motion asking the
court to grant him that leave, dkt. no. 2, but before the court ruled on the
motion, the appellant paid the filing fee. Given that, the court must consider
for the first time on appeal whether the appellant is indigent.
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 appellate filing fee in advance, he can
ask to proceed without prepaying it. The appellant has asserted that he does
not have the money to pay the filing fee. In the court of appeals, he filed an
affidavit asserting that he has no income, no assets and no expenses. Dkt. No.
38 at 2-7. He indicated that he is unemployed, that he had lost nearly all his
family members, and that he recently had a heart attack (and died) and that
his health doesn’t allow him to work. Id. at 7.

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Before a court can grant a prisoner’s request to proceed without
prepaying the filing fee, however, the court must assess an initial filing fee of
twenty percent (20%) of the average monthly deposits to the plaintiff’s prison
account or average monthly balance in the plaintiff’s prison account for the sixmonth period immediately preceding the filing of the notice of appeal,
whichever is greater. 28 U.S.C. §1915(b)(1). The appellant has not filed his
trust account statement for the six-month period prior to the date he filed the
notice of appeal (in other words, his trust account statement for October 2017
through March 2018). Even though he has filed an affidavit indicating that he
is indigent, the court cannot allow the appellant to proceed without prepaying
the filing fee until he files the trust account statement. The court will give him
a deadline for filing the trust account statement.
B.

Three Strikes

The appellant has not had three prior cases dismissed because they were
frivolous or did not state a claim. He has not accrued three strikes.
C.

Appeal Taken in Good 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)). Put another way, a litigant takes an appeal in good faith
if “a reasonable person could suppose that the appeal has some merit.” Walker

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v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000)). 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)).
At the end of the court’s order dismissing the appellant’s habeas petition,
it declined to issue a certificate of appealability. The court found:
Here, the court declines to issue a certificate of
appealability because the petitioner has not made a substantial
showing that the grounds in his petition are timely; has not
made a substantial showing that the court should equitable toll
the statute of limitations; and has not made a substantial
showing of his actual innocence. In a case challenging a thirtynine-year-old conviction that has been considered multiple times
by each level of the state courts, the court finds that reasonable
jurists would not debate that the petition should have been
resolved in a different manner.
Dkt. No. 26 at 46.
One might conclude under these circumstances that the appellant has
not filed this appeal in good faith. But the good-faith standard for allowing a
party to appeal without prepaying the filing fee is a lower standard that the
standard that a habeas petitioner must meet to obtain a certificate of
appealability. O’Brien, 626 F.3d at 631-32. “[T]o determine that an appeal is in
good faith, a court need only find that a reasonable person could suppose that
the appeal has some merit.” Id. (citation omitted).
While it is a close call, the court cannot conclude that the appellant will
not be able to point the appellate court to a single issue that a reasonable
person would not suppose had some merit. The court will conclude, therefore,
that the appellant filed this appeal in good faith.

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II.

Next Steps
The court will require the appellant to file his trust account statement

covering the period from October 1, 2017 through March 31, 2018 in time for
the court to receive it by the end of the day on June 15, 2018. If the court does
not receive the trust account statement by the end of the day on that date, the
court will deny the appellant’s request to appeal without prepaying the filing
fee, and will require him to pay the $505 filing fee in full.
If the appellant files his trust account statement by the end of the day on
June 15, 2018, the court will issue an order requiring him to pay the initial
partial filing fee, and giving him a deadline for paying it. After the appellant
pays the initial partial filing fee, he 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 that has custody of the appellant will collect the
money and send payments to the court. No payment is required in months will
be required where the preceding month’s income is $10.00 or less. Id.
The court will send a copy of this order to the Warden at Oshkosh
Correctional Institution.
III.

Conclusion
The court ORDERS that the appellant shall file his trust account

statement for the six-month period from October 1, 2018 through March 31,
2018 in time for the court to receive it by the end of the day on June 15, 2018.
If the court does not receive the trust account statement by that time, the court
will deny the appellant’s request to proceed without paying the filing fee, and

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will order the appellant to pay the $505 appellate filing fee in full in order to
proceed with his appeal.
Dated in Milwaukee, Wisconsin this 14th day of May, 2018.
BY THE COURT:

_____________________________________
HON. PAMELA PEPPER
United States District Judge

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