Edmonds v. Operating Engineers Local 139

Filing 29

Order Construing Notice of Appeal as Request to Proceed ifp. Appeal not certified to be taken in good faith. Leave to proceed ifp on appeal denied.. Signed by Chief Judge Barbara B. Crabb on 6/18/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - FR AN K L IN C. EDMONDS, ORDER Plaintiff, 08-cv-567-bbc v. O P E R A T IN G ENGINEERS LOCAL 139, D efendan t. - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - O n June 1, 2009, I granted defendant Operating Engineers Local 139's motion to dism iss this case. Now before the court is plaintiff Franklin Edmonds's notice of appeal. Plaintiff seeks leave to proceed in forma pauperis on his appeal. Plaintiff's request will be denied because I am certifying that his appeal is not taken in good faith. I n Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982), the court of appeals instructed district courts to find bad faith where a petitioner is appealing the same claims the court found to be without legal merit in denying petitioner leave to proceed on his com plaint. See Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000). Petitioner is trying to appeal the same claims I have found to be barred under the doctrine of claim preclusion. Because there is no legally meritorious basis for petitioner's appeal, I must certify that the appeal is no t taken in good faith. 1

Because I am certifying plaintiff's appeal as not having been taken in good faith, plaintiff cannot proceed with his appeal without prepaying the $455 filing fee unless the court of appeals gives him permission to do so. Pursuant to Fed. R. App. P. 24, plaintiff has 30 days from the date of this order in which to ask the court of appeals to review this court's denial of leave to proceed in forma pauperis on appeal. His motion must be accompanied by an affidavit as described in the first paragraph of Fed. R. App. P. 24(a), including a statem ent of issues that plaintiff intends to present on appeal. Also plaintiff's motion must be accompanied by a copy of this order. Plaintiff should be aware that these documents sh ou ld be filed in addition o the notice of appeal he has previously filed. If plaintiff does not file a motion requesting review of this order, the court of appeals may not address this cou rt's denial of leave to proceed in forma pauperis on appeal, but rather require plaintiff to pay the entire $455 filing fee before it considers his appeal. If plaintiff fails to pay the fee w ithin the deadline set, the court of appeals ordinarily will dismiss the appeal and order this cou rt to arrange for collection of the fee from plaintiff's prison account.

ORDER IT IS ORDERED that plaintiff's request for leave to proceed in forma pauperis on appeal, dkt. #26, is DENIED. I certify that plaintiff's appeal is not taken in good faith. The clerk of court is directed to insure that plaintiff's obligation to pay the $455 fee for filing his

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app eal is reflected in the court's financial record. Entered this 18t h day of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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