Titus Henderson v. Rick Raemisch et al

Filing 8

Order Construing Notice of Appeal as Request to Proceed ifp. Appeal not certified to be taken in good faith. Leave to proceed ifp denied. Signed by Chief Judge Barbara B. Crabb on 6/19/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------T IT U S HENDERSON, ORDER Plaintiff, 0 9 - cv -1 7 0 - b b c v. R I C K RAEMISCH, PETER HUIBREGTSE, G A R Y BOUGHTON, ELLEN RAY, T O M GOZINSKI, WELCOME ROSE, A M Y SMITH, HELLEN KENNEBECK, K AT H R Y N ANDERSON, LARRY PRIMMER, JA N A JUERGENS, MONICA HORNER, T RIS H A LANSING, NANCY SALMON, EL LEN RAY, C. BEERKIRCHER, T H O M A S TAYLOR, DAVID GARDNER, L T . BOISEN, BRIAN KOOL, TIM HAINES, C RA IG TOM, LT. HANFIELD, JOSH BROWN, H . BROWN, W. BROWN, SGT. FURER, C O NEIS, SGT. CARPENTER, S G T . BOARDMAN, SGT. BLOYER, C O II JONES, COII JOHNSON, CO HULCE, C O II KARNOPP, R. STARKEY, S G T . WALLACE, COII ECKT, COII EWING, D . ESSER, M. SCULLION, JEROMEY CAYA, JEN N IFER SICKINGER, JOAN WATERMAN, W EN D Y THOMPSON, SGT. TREFT, S G T . COOK and JOHN DOES, D efendan ts. ---------------------------------------------

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On April 1, 2009, I denied plaintiff Titus Henderson's request to proceed in forma pau peris under § 1915(g), finding that he was not in imminent danger at the time he filed th is lawsuit. I allowed him until April 22, 2009 to pay the filing fee in the amount of $350. Because plaintiff failed to pay the filing fee, his case was closed on April 29, 2009. On May 27 , 2009, I denied his motion for reconsideration of the April 1 order. Now before the court is plaintiff's notice of appeal. Because he has not paid the $455 f e e for filing a notice of appeal, I construe the notice as including a request for leave to pro ceed in forma pauperis on appeal. I must deny that request because plaintiff has struck out under 28 U.S.C. § 1915(g) and has not shown that he is in imminent danger of serious physical injury. 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 shou ld be filed in addition to the notice of appeal he has previously filed. If plaintiff does no t file a motion requesting review of this order, the court of appeals may not address this court's denial of leave to proceed in forma pauperis on appeal. Instead, it will require

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plaintiff to pay the entire $455 filing fee before it considers his appeal. If plaintiff fails to pay the fee within the deadline set, it is possible that the court of appeals will dismiss the app eal and order this court to arrange for collection of the fee from plaintiff's prison account.

OR DER IT IS ORDERED that plaintiff's request for leave to proceed in forma pauperis on appeal, dkt. #5, 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 app eal is reflected in the court's financial record. Entered this 19t h day of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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