Harmon v. Wisconsin Department of Corrections et al

Filing 25

ORDER signed by Chief Judge Pamela Pepper on 9/25/2024 GRANTING 20 plaintiff's motion for leave to appeal without prepaying appellate filing fee. By end of day 10/25/2024, plaintiff to pay $40.51 initial partial filing fee for appeal; failure to pay by deadline may result in dismissal by court of appeals. (cc: all counsel and mailed to Warden and Joshua Harmon at Oshkosh Correctional Institution)(cb)

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

Case No. 24-cv-437-pp

WISCONSIN DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO APPEAL
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 20)
______________________________________________________________________________
On May 13, 2024, the court dismissed the plaintiff’s amended complaint
for failure to state a claim and issued him a “strike.” Dkt. No. 11. On August
19, 2024, the court denied the plaintiff’s motion for reconsideration. Dkt. No.
16. The plaintiff appeals the judgment, dkt. no. 18, and he moves for leave to
proceed with his appeal without prepaying the appellate filing fee, dkt. no. 20.
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 an
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 institutional 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 institutional account or average monthly balance in

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the 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 plaintiff 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 plaintiff 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 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 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. Federal Rule of Appellate
Procedure 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 v.

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California, 386 U.S. 738 (1967)); see also Coppedge v. United States, 369 U.S.
438, 445 (1962). An appeal taken in bad faith is one that is based on a frivolous
claim, which means it is based on 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 for leave 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 $40.51, 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,
209 F.3d 1025.
The court GRANTS the plaintiff’s motion for leave to proceed on appeal
without prepayment of the filing fee. Dkt. No. 20.
The court ORDERS that by the end of the day on October 25, 2024, the
plaintiff shall forward to the Clerk of Court the sum of $40.51 as the initial
partial filing fee for this appeal. If the clerk does not receive that amount by the
end of the day on October 25, 2024, the court of appeals may dismiss the
appeal. The plaintiff must identify the payment by the case name and number.
The court ORDERS that after the initial filing fee has been paid, the
agency having custody of the plaintiff shall collect from his institution trust
account the $564.49 balance of the filing fee by collecting monthly payments
from the plaintiff’s institutional trust account in an amount equal to 20% of the
preceding month’s income credited to his institutional trust account and

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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
shall 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 send a copy of this order to the Warden at Oshkosh
Correctional Institution where the plaintiff is incarcerated.
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 25th day of September, 2024.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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