Smith v. Clarke et al

Filing 55

ORDER signed by Chief Judge Pamela Pepper on 2/24/2020 GRANTING 53 plaintiff's motion for leave to proceed on appeal without prepaying filing fee; by 3/25/2020 plaintiff to forward $34.13 as initial partial filing fee in his appeal. Warde n at Green Bay and/or Wisconsin Secure Program Facility to DISREGARD 12/19/2019 letter from Clerk of Court indicating that plaintiff was to pay full $505 filing fee. (cc: all counsel, via mail to Antonio Smith at Wisconsin Secure Program Faciltiy; Warden-Green Bay Correctional Institution; Warden-Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANTONIO MARQUES SMITH,
Plaintiff,
v.

Case No. 17-cv-668-pp

KERRY TURNER, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO APPEAL
WITHOUT PREPAYING THE FILING FEE (DKT. NO. 53) AND ORDERING
WARDEN AT GREEN BAY CORRECTIONAL INSTITUTION AND/OR WARDEN
AT WISCONSIN SECURE PROGRAM FACILITY TO DISREGARD
DECEMBER 19, 2019 LETTER FROM CLERK OF COURT
______________________________________________________________________________
On September 30, 2019, the court issued an order dismissing this case.
Dkt. No. 42. The plaintiff filed a notice of appeal on November 1, 2019. Dkt. No.
44. He did not, however, file a motion for leave to appeal without prepaying the
appellate filing fee. On December 19, 2019, the Seventh Circuit Court of
Appeals dismissed the appeal for the plaintiff’s failure to pay the full filing fee.
Dkt. No. 49. On January 13, 2020, the plaintiff wrote to the court of appeals
explaining that, because he is representing himself, he was waiting for
direction from the Seventh Circuit on how to proceed. Dkt. No. 51 at 2. He also
explained that he could not afford to pay the full filing fee and asked the court
to vacate its order requiring him to pay the full filing fee. Id. at 3. The plaintiff
subsequently filed a motion for leave to proceed with his appeal without
prepaying the appellate filing fee. Dkt. No. 53.
The Seventh Circuit construed the plaintiff’s January 13, 2020 letter as
a motion to recall the mandate and granted it. Dkt. No. 52. The court vacated
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its final order dated December 19, 2019 and recalled the mandate. Id. It also
reinstated the appeal and directed this court to consider the motion to proceed
on appeal in forma pauperis. Id.
On December 19, 2019, as a result of the Seventh Circuit’s order, the
clerk of this court sent a letter to the warden at Green Bay Correctional
Institution, where the plaintiff was confined, erroneously indicating that the
Seventh Circuit had ordered the plaintiff to pay the full $505 filing fee. Dkt. No.
50. That is not what the Seventh Circuit ordered—it ordered this court to rule
on the plaintiff’s motion to proceed without prepaying the fee. As of February
13, 2020, the court is not aware of the institution having sent any payments.
The court will send a copy of this order to the warden at Green Bay, instructing
him to disregard the December 19, 2019 letter from the clerk’s office. The
Wisconsin Department of Corrections’ offender locator indicates that the
plaintiff is now residing at the Wisconsin Secure Program Facility,
https://appsdoc.wi.gov/lop/detail.do, so the court also will send a copy of this
order to the Warden there.
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 filing fee in advance for an appeal, he
can ask the court for permission to proceed without prepayment. 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
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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). In this case, the court finds that the
plaintiff has established 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.
If a district court allowed a party to proceed without prepaying the filing
fee at the trial level, 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
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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 his 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
notice of appeal. A review of this information reveals that the plaintiff must pay
an initial partial filing fee of $34.13, and then must pay the balance of the filing
fee through deductions from his inmate account as required by 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 ORDERS that the Warden at Green Bay Correctional
Institution and/or the Warden at the Wisconsin Secure Program Facility must
disregard the December 19, 2019 letter from the clerk of court for the district
court in which the clerk indicated that the Seventh Circuit had ordered the
plaintiff to pay the full $505 filing fee.
The court GRANTS the plaintiff’s motion for leave to proceed on appeal
without prepaying the filing fee. Dkt. No. 53.
The court ORDERS that by the end of the day on March 25, 2020, the
plaintiff shall forward to the Clerk of Court the sum of $34.13 as the initial
partial filing fee for this appeal. If the clerk does not receive that amount by the
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end of the thirtieth day, the court of appeals may dismiss the appeal. The
plaintiff shall identify the payment by the case name and number.
The court ORDERS that after the plaintiff has paid the initial partial
filing fee, the agency having custody of the plaintiff shall collect from his
institution trust account the $470.87 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 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 shall 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 February, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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