Howard v. Alsum-O'Donovan et al

Filing 100

ORDER signed by Chief Judge Pamela Pepper on 11/22/2024 GRANTING 98 plaintiff's motion for leave to proceed on appeal without prepaying appellate filing fee. Plaintiff to pay $1.69 initial partial filing fee by end of day 12/23/2024; fail ure to pay by deadline may result in dismissal. After initial partial filing fee paid, agency having custody of plaintiff to collect $603.31 balance of appellate filing fee from plaintiff's prison trust account under 28 USC §1915(b)(2). (cc: all counsel and mailed to Warden and Joshua Howard at Fox Lake Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSHUA HOWARD,
Plaintiff,
v.

Case No. 18-cv-1830-pp

ANTHONY MELI, et al.,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO APPEAL
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 98)
______________________________________________________________________________
On October 21, 2024, the court issued an order dismissing this case.
Dkt. No. 94. Judgment was entered on the same day. Dkt. No. 95. The court
received the plaintiff’s notice of appeal on November 18, 2024. Dkt. No. 96. He
has filed a motion for leave to proceed with his appeal without prepaying the
appellate filing fee. Dkt. No. 98.
Under the Prison Litigation Reform Act, an incarcerated person must pay
the applicable filing fees in full for a civil case. 28 U.S.C. §1915(b). If the
incarcerated person does not have the money to pay the $605 filing fee in
advance for an appeal, he can request the court for permission to proceed
without prepayment. For the court to consider such a request, the incarcerated
person must complete a petition and affidavit and return it to the court, along
with a certified copy of his 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
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plaintiff’s prison account or average 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 incarcerated person 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
person (the institution in which he is incarcerated) will collect the money and
send payments to the court.
There are three grounds for denying an incarcerated appellant’s request
to proceed without prepaying the filing fee: the incarcerated person has not
shown that he is indigent, he has filed the appeal in bad faith or he has three
strikes. See 28 U.S.C. §§1915(a)(2)-(3), (g). The court finds that the plaintiff has
established that 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 the district 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.”).
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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). 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. 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. Dkt. No. 99. A review of this information reveals that the
plaintiff must pay an initial partial filing fee of $1.69, 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).
If the plaintiff does not have enough money in his regular trust account
to pay the initial partial fee but does have enough money in his release
account, the plaintiff is responsible for making arrangements with the
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authorities at the jail or prison to pay the balance of the initial partial filing fee
from the release account. 28 U.S.C. §1915(b)(1) suggests, however, that an
incarcerated person may use release account funds to pay an initial partial
filing fee only if he does not have enough money in his regular trust account.
See Carter v. Bennett, 399 F. Supp. 2d 936, 936-37 (W.D. Wis. 2005).
The court GRANTS the plaintiff’s motion for leave to proceed on appeal
without prepaying the filing fee. Dkt. No. 98.
The court ORDERS that by the end of the day on December 23, 2024,
the plaintiff shall forward to the Clerk of Court the sum of $1.69 as the initial
partial filing fee for this appeal. If the clerk does not receive that amount by the
end of the day on December 23, 2024, the court of appeals may dismiss the
appeal. The plaintiff shall identify the payment by the case name and the
district court and appellate case numbers. If the plaintiff does not have enough
money in his regular trust account to pay the initial partial filing fee but does
have enough money in his release account, the plaintiff is responsible for
making arrangements with the authorities at the jail or prison to pay the
balance of the initial partial filing fee from the release account. 28 U.S.C.
§1915(b)(1) suggests, however, that an incarcerated person may use release
account funds to pay an initial partial filing fee only if he does not have enough
money in his regular trust account. See Carter v. Bennett, 399 F. Supp. 2d
936, 936-37 (W.D. Wis. 2005).
The court will send a copy of this order to the Warden at Fox Lake
Correctional Institution, where the plaintiff is confined, and provide a copy to
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the PLRA Attorney, United States Court of Appeals for the Seventh Circuit,
through the court’s electronic filing system.
The court ORDERS that after the plaintiff has paid the initial filing fee,
the agency having custody of the plaintiff must collect from his institution trust
account the $603.31 balance of the appeal fee by collecting monthly payments
from the plaintiff’s trust account in an amount equal to 20% of the preceding
month’s income credited to the plaintiff’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 appellate case 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.
Dated in Milwaukee, Wisconsin this 22nd day of November, 2024.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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