Gill v. Brown County Jail et al

Filing 105

ORDER signed by Chief Judge Pamela Pepper on 7/9/2020 GRANTING 103 plaintiff's motion for leave to appeal without prepaying appellate filing fee. By 8/7/2020, plaintiff to pay initial partial filing fee of $27.30; once initial fee paid, agency having custody of plaintiff to collect $477.70 balance of filing fee from plaintiff's prison trust account under 28 USC §1915(b)(2). (cc: all counsel, via mail to Charles Gill and Warden at Kettle Moraine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHARLES B. GILL, SR.,
Plaintiff,
v.

Case No. 17-cv-873-pp
Appeal No. 20-1999

HEIDI MICHEL, J. MEKASH,
BRENT MEYER, and IAN HIGGINS,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO APPEAL
WITHOUT PREPAYING FILING FEE (DKT. NO. 103)
______________________________________________________________________________
On September 16, 2019, the court dismissed this case. Dkt. No. 87. The
plaintiff filed motion to alter or amend judgment, dkt. no. 89, which the court
denied, dkt. no. 93. The plaintiff filed a motion for relief from judgment, dkt.
no. 94, which the court denied, dkt. no. 98. On June 11, 2020, the plaintiff
filed a notice of appeal. Dkt. No. 99. He also has filed a motion for leave to
appeal without prepaying the appellate filing fee. Dkt. No. 103.
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 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
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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 partial 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).
Based on his prison trust account (Dkt. No. 104), the court finds that the
plaintiff has established that he is indigent, and he has not accrued three
strikes. That leaves only the question of whether the plaintiff filed this appeal
in good faith.
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
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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 sees no indication that the plaintiff did not take this appeal in
good faith, and 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 $27.30, 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 proceed on appeal
without prepaying the filing fee. Dkt. No. 103.
The court ORDERS that by the end of the day on August 7, 2020, the
plaintiff must forward to the Clerk of Court the sum of $27.30 as the initial
partial filing fee for this appeal. If the clerk does not receive that amount by the
end of the day on August 7, 2020, the court of appeals may dismiss the appeal.
The plaintiff must identify the payment by the case name and number.
The court will send a copy of this order to the officer in charge of the agency
where the plaintiff is confined.
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The court ORDERS that after the initial filing fee has been paid, the
agency that has custody of the prisoner shall collect from his institution trust
account the $477.70 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 must forward a copy of this order, along with the
plaintiff’s remaining balance, to the receiving institution.
The court will electronically 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 9th day of July, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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