Brown v. Bowens et al

Filing 43

DECISION AND ORDER signed by Magistrate Judge William E Duffin on 1/6/2025. The plaintiff Lee Anthony Brown's motion for leave to proceed in forma pauperis on appeal (ECF No. 41 ) is GRANTED. By February 3, 2025, Brown shall forward to the Clerk of Court the sum of $6.49 as the initial partial filing fee in this appeal. (cc: all counsel and mailed to pro se party, Warden at OCI)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEE ANTHONY BROWN,
Plaintiff,
v.

Case No. 22-CV-1527

NANCY BOWENS, et al.,
Defendants.
DECISION AND ORDER
On May 16, 2024, the court granted the defendants’ summary judgment motion
and dismissed the case, entering judgment accordingly. (ECF Nos. 30. 31.) Plaintiff Lee
Anthony Brown filed a notice of appeal on July 8, 2024. (ECF No. 34.) The court now
considers Brown’s motion to proceed on appeal without prepayment of the filing fee.
(ECF No. 41.)
Under the Prison Litigation Reform Act a prisoner must pay in full the applicable
filing fee for an appeal. 28 U.S.C. § 1915(b). If a prisoner does not have the money to
pay the $605.00 filing fee for an appeal in advance, he or she can request leave to proceed
in forma pauperis. To proceed with an appeal in forma pauperis, the prisoner must
complete a petition and affidavit to proceed in forma pauperis 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 immediately preceding the filing of the notice of appeal, whichever
is greater. 28 U.S.C. § 1915(b)(1).
After the initial fee is paid, the prisoner 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 which 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 in
forma pauperis on appeal: 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). The
court finds that Brown has established that he is indigent and that he has not accrued
three strikes. That leaves only the question of whether Brown filed this appeal in good
faith.
A party who has been granted leave to proceed in forma pauperis in the district
court may proceed in forma pauperis 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 in forma pauperis. 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
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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).
This court does not find any indication that Brown’s appeal is not taken in good
faith. Therefore, the court will grant his motion to proceed in forma pauperis on appeal.
Along with his request to proceed in forma pauperis, Brown filed a certified copy
of his prison trust account statement for the sixth-month period immediately preceding
the filing of his notice of appeal. A review of this information reveals that Brown is
required to pay an initial partial filing fee of $6.49, as well as additional payments
pursuant to 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).
IT IS ORDERED that Brown’s motion for leave to proceed in forma pauperis on
appeal (ECF No. 41) is GRANTED.
IT IS FURTHER ORDERED that by February 3, 2025, Brown shall forward
to the Clerk of Court the sum of $6.49 as the initial partial filing fee in this appeal.
Brown’s failure to comply with this order may result in dismissal of this appeal. The
payment shall be clearly identified by the case name and number assigned to this action.
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IT IS FURTHER ORDERED that, after the initial filing fee has been paid, the
agency having custody of Brown shall collect from his institution trust account the
$598.51 balance of the filing fee by collecting monthly payments from Brown’s prison
trust account in an amount equal to 20% of the preceding month's income credited to
Brown'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
payments shall be clearly identified by the case name and number assigned to this
action. If Brown is transferred to another county, state, or federal institution, the
transferring institution shall forward a copy of this Order along with Brown's remaining
balance to the receiving institution.
IT IS ALSO ORDERED that a copy of this order be sent to the officer in charge
of the agency where Brown is confined.
IT IS ALSO ORDERED that a copy of this order be electronically provided to
PLRA Attorney, United States Court of Appeals for the Seventh Circuit, through the
court’s electronic case filing system.
Dated at Milwaukee, Wisconsin this 6th day of January, 2025.

BY THE COURT

WILLIAM E. DUFFIN
United States Magistrate Judge

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