Otis v. Flos
ORDER signed by Judge J P Stadtmueller on 8/1/2022: DENYING 55 Plaintiff's Second Motion for Leave to Appeal Without Prepayment of the Filing Fee and DENYING 56 Plaintiff's Motion to Consolidate Her Appellate Cases. (cc: all counsel, via mail to Jill L Otis)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JILL L. OTIS,
Case No. 20-CV-1711-JPS
7th Cir. Case No. 22-2341
MARIE FROH a/k/a MARIE FLOS,
Plaintiff brought this action on November 13, 2020. ECF No. 1. On
December 1, 2020, Magistrate Judge Stephen C. Dries granted Plaintiff’s
request to proceed in forma pauperis and instructed her to file an amended
complaint. ECF No. 4. Plaintiff filed her Amended Complaint on December
10, 2020, which Magistrate Judge Dries screened, and Defendant answered
on January 27, 2021. ECF Nos. 5, 6, 10. Thereafter, the case was transferred
to this branch of the Court. On June 29, 2021, the Court set a status
conference for July 16, 2021 and mailed the notice of hearing to Plaintiff.
Plaintiff did not appear for the July 16, 2021 status conference. ECF No. 16.
At the status conference, the Court and Defendant stated that neither had
any contact with Plaintiff, nor any means to contact her. Id. Accordingly,
the Court dismissed the action without prejudice for lack of diligence on
July 19, 2021. ECF No. 18. The next day, on July 20, 2021, Plaintiff filed a
motion to reopen the case, which the Court granted. ECF Nos. 20, 24. The
Court ordered that any dispositive motions be filed by May 10, 2022. ECF
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On May 6, 2022, Defendant filed a motion to dismiss on statute of
limitations grounds, which was fully briefed. ECF Nos. 27, 28, 34, 35. The
Court granted the motion on June 7, 2022, finding that the Section 1983 Due
Process Clause and Equal Protection Clause claims brought on Plaintiff’s
own behalf are barred by the statute of limitations. ECF No. 36. The Court
dismissed those claims with prejudice. Id. The Court also dismissed with
prejudice any Section 1983 Due Process Clause claim to the extent brought
on Plaintiff’s then-minor son’s behalf as barred by DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189 (1989), which teaches that
a Section 1983 claim against a state actor for private harm suffered while in
foster care is not viable. Id. The Court dismissed any Section 1983 Equal
Protection Clause claim to the extent brought on Plaintiff’s then-minor son’s
behalf without prejudice and ordered Plaintiff to file a second amended
complaint as to that claim by June 28, 2022. Id. As a parent may not proceed
pro se as a next friend, the Court stated that should Plaintiff adequately
plead the claim, it would reconsider her motion to appoint counsel and thus
denied her motion to appoint counsel without prejudice. Id.
Separately, on June 13, 2022, Plaintiff filed an appeal to the Seventh
Circuit of the Court’s June 7, 2022 order. ECF No. 37. Plaintiff also filed a
motion for leave to proceed in forma pauperis on appeal. ECF No. 39. On June
16, 2022, the Court denied Plaintiff’s motion for leave to proceed in forma
pauperis on appeal. ECF No. 43. In that order, the Court “remind[ed]
Plaintiff of her June 28, 2022 deadline to file a second amended complaint
in line with the Court’s June 7, 2022 order,” and provided the additional
instruction that “[t]hat deadline is still outstanding and is not affected by
the instant appeal.” Id. at 4.
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The June 28, 2022 deadline passed and the Court did not receive a
second amended complaint from Plaintiff, or any filing that adequately
repleads the Section 1983 Equal Protection Clause claim to the extent
brought on her then-minor son’s behalf. In light of the deadline having
passed, on July 1, 2022, Defendant filed a motion for entry of final judgment.
ECF No. 44. Thereafter, on July 7, 2022, in lieu of filing a second amended
complaint as ordered by the Court, Plaintiff filed a renewed motion for
counsel and a motion to transfer venue. ECF No. 46. In her motion, Plaintiff
represents that she “would like to change [her] venue so that [her] case can
be heard in a state that is not going to be bias [sic] but gives the right
outcome of this Case.” Id. at 2. On July 25, 2022, after observing that the
Seventh Circuit had ordered briefing as to whether the Court’s June 7, 2022
order was final and appealable, and that Plaintiff had neglected to file a
second amended complaint as ordered by the Court, the Court granted
Defendant’s motion for entry of final judgment. ECF No. 51 at 3 & n.1. The
Court further denied Plaintiff’s motion to transfer venue. Id.
Thereafter, on July 29, 2022, Plaintiff filed a second notice of appeal–
now as to the Court’s July 25, 2022 order–and a second motion to proceed
in forma pauperis on appeal. ECF Nos. 53, 55. Plaintiff also filed a motion to
consolidate her two appellate actions. ECF No. 56. A plaintiff may not
proceed without prepayment of the filing fee on appeal 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.
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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, Plaintiff’s appeal is not taken in good faith, and therefore
her motion to proceed in forma pauperis must be denied. In its order denying
Plaintiff’s first motion to proceed in forma pauperis, which accompanied her
first notice of appeal, the Court found that the appeal was not taken in good
faith because, inter alia, it sought to appeal claims that were either barred
by the statute of limitations or not viable, as determined by the United
States Supreme Court in DeShaney. ECF No. 43. Along the same lines, in its
June 7, 2022 order, the only claim the Court denied without prejudice was
the Section 1983 Equal Protection Clause claim to the extent brought on her
then-minor son’s behalf. ECF No. 36. Plaintiff’s second notice of appeal does
not list any grounds therefor and, consequently, the Court is unable to
determine from that document alone whether the appeal is taken in good
faith. ECF No. 53. In her motion to consolidate, Plaintiff merely reiterates
the claims that the Court had dismissed based on the statute of limitations
and DeShaney. ECF No. 56. Plaintiff does not point to any error of law or
fact that she believes the Court made in dismissing her case as to the Section
1983 Equal Protection Clause claim to the extent brought on her then-minor
son’s behalf. Nor can she, as she did not replead that claim. No reasonable
person could suppose that the instant appeal has merit without knowing
the basis for the appeal.
Because the Court certifies that the appeal is not taken in good faith,
the Court provides the following information to Plaintiff regarding
proceeding before the Seventh Circuit. Plaintiff will not be able to proceed
on appeal without paying the filing fee, unless the court of appeals grants
her permission to do so. Plaintiff has 30 days from the date of this Order to
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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 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 Plaintiff
does not request review of this Order, the Seventh Circuit may choose not
to address the Court’s denial of Plaintiff’s motion; instead, it may require
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.
The Court further denies Plaintiff’s motion to consolidate, ECF No.
56. This Court does not have jurisdiction to consolidate cases pending
before the Seventh Circuit. Fed. R. App. P. 3(b)(2) (“[A]ppeals may be joined
or consolidated by the court of appeals.”).
IT IS ORDERED that Plaintiff’s second motion for leave to appeal
without prepayment of the filing fee, ECF No. 55, be and the same is hereby
IT IS FURTHER ORDERED that Plaintiff’s motion to consolidate
her appellate cases, ECF No. 56, be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 1st day of August, 2022.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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