Smith v. GRAMS, WARDEN GREG et al

Filing 48

Order Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Appeal not certified to be taken in good faith. Signed by Chief Judge Barbara B. Crabb on 3/9/10. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------D ER R IC K L. SMITH, ORDER Plaintiff, 0 9 - cv -3 8 7 - b b c v. G R E G O R Y GRAMS, Warden, D efendan t. --------------------------------------------O n February 2, 2010, I dismissed with prejudice plaintiff Derrick L. Smith's claims that defendant Gregory Grams retaliated against him, acted with deliberate indifference to h is serious medical needs and violated his rights to due process and equal protection for failure to state a claim upon which relief may be granted. Also, I dismissed plaintiff's access to the courts claim concerning his civil cases with prejudice for failure to state a claim upon w hich relief may be granted and dismissed his access to the courts claim concerning habeas and criminal appeals cases without prejudice for his failure to exhaust his administrative rem edies. N ow plaintiff has filed a notice of appeal of the February 2 decision. Because he has no t paid the $455 fee for filing an appeal, I construe his notice as a request for leave to

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p ro ceed in forma pauperis on appeal. A district court has authority to deny a request for leave to proceed in forma pauperis under 28 U.S.C. § 1915 for one or more of the following reason s: the litigant wishing to take an appeal has not established indigence, the appeal is in bad faith or if the litigant is a prisoner and has three strikes. § 1915(a)(1),(3) and (g). S pero w v. Melvin, 153 F.3d 780, 781 (7th Cir. 1998). Plaintiff's request for leave to proceed in forma pauperis on appeal will be denied, because I am certifying that his appeal is not taken in good faith. In Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982), the court of appeals instructed district courts to find bad faith in cases in which a plaintiff is appealing the same claim s the court found to be without legal merit. Lee v. Clinton, 209 F.3d 1025, 1027 (7th C ir. 2000). Plaintiff is trying to appeal the same claims that I dismissed for failure to state a claim upon which relief may be granted, together with the one claim that I dismissed for his failure to exhaust his administrative remedies. He was provided two opportunities to am en d his complaint to repair pleading defects and failed to do so. Because there is no legally meritorious basis for plaintiff's appeal, I must certify that the appeal is not taken in goo d faith. Because I am certifying plaintiff's appeal as not having been taken in good faith, he can n o t proceed with his appeal without prepaying the $455 filing fee unless the court of ap peals gives him permission to do so. Under Fed. R. App. P. 24, plaintiff has 30 days from

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th e 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. With his motion, he must include an affidavit as described in the first paragraph of Fed. R. App. P. 24(a), with a statement of issues he in tends to argue on appeal. Also, he must send along a copy of this order. Plaintiff should be aware that he must file these documents in addition to the notice of appeal he has filed p revio usly. If plaintiff does not file a motion requesting review of this order, the court of appeals may not address the denial of leave to proceed in forma pauperis on appeal. Instead, it may require plaintiff to pay the entire $455 filing fee before it considers his appeal. If plain tiff does not pay the fee within the deadline set, it is possible that the court of appeals w ill dismiss the appeal.

OR DER IT IS ORDERED that plaintiffs Derrick L. Smith `s request for leave to proceed in form a pauperis on appeal is DENIED. I certify that his appeal is not taken in good faith. E n tered this 9 t h day of March, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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