Golden v. Raemisch et al
Filing
65
ORDER Construing 56 Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp granted. Plaintiff may have until May 9, 2012, in which to submit a check or money order made payable to the clerk of court in the amount of $97.50. Signed by District Judge Barbara B. Crabb on 4/18/2012. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PARISH GOLDEN,
Plaintiff,
ORDER
v.
09-cv-442-bbc
RICHARD RAEMISCH, CATHY JESS,
RICHARD PHILLIPS, C.O. II M. ROHR and
SUSAN WALLINTIN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Judgment was entered in this case on August 11, 2010 granting defendants’ motion
for summary judgment and closing this case. On December 30, 2011, I denied plaintiff’s
motion to alter or amend judgment and granted his request for leave to proceed in forma
pauperis on appeal. Now before the court is plaintiff’s second notice of appeal, which I
construe to also include a request for leave to proceed in forma pauperis on appeal. Dkt.
#56. Plaintiff has submitted a trust fund account statement for the six months preceding
the filing of his appeal.
Plaintiff’s second appeal may be untimely. However, only the court of appeals may
determine whether it has jurisdiction to entertain an appeal. Hyche v. Christensen, 170 F.3d
1
769, 770 (7th Cir. 1999). As I stated in my December 30 order, plaintiff’s request for leave
to proceed in forma pauperis on appeal is governed by the 1996 Prison Litigation Reform
Act. This means that this court must determine first whether plaintiff’s request must be
denied either because he has three strikes against him under 28 U.S.C. § 1915(g) or because
the appeal is not taken in good faith. Plaintiff does not have three strikes against him, and
I do not intend to certify that his appeal is not taken in good faith.
However, plaintiff is required to make an initial partial payment of the filing fee that
has been calculated from a certified copy of his trust fund account statement for the sixmonth period immediately preceding the filing of his notice of appeal.
28 U.S.C. §
1915(a)(2). From plaintiff’s trust fund account statement, I conclude that he is qualifies for
indigent status. Further, I assess plaintiff an initial partial payment of the $455 fee for filing
his appeal in the amount of $97.50.
If plaintiff does not have the money to make the initial partial appeal payment in his
regular account, he will have to arrange with prison authorities to pay some or all of the
assessment from his release account. The only amount plaintiff must pay at this time is the
$97.50 initial partial appeal payment. Before prison officials take any portion of that
amount from plaintiff's release account, they may first take from plaintiff's regular account
whatever amount up to the full amount plaintiff owes. Plaintiff should show a copy of this
order to prison officials to make sure they are aware they should send plaintiff's initial partial
appeal payment to this court.
2
ORDER
IT IS ORDERED that plaintiff’s request for leave to proceed in forma pauperis on
appeal, dkt #56, is GRANTED. Plaintiff may have until May 9, 2012, in which to submit
a check or money order made payable to the clerk of court in the amount of $97.50. If, by
May 9, 2012, plaintiff fails to pay the initial partial payment or explain his failure to do so,
then I will advise the court of appeals of his noncompliance in paying the assessment so that
it may take whatever steps it deems appropriate with respect to this appeal. The clerk of
court is requested to insure that the court's financial records reflect plaintiff's obligation to
pay the $97.50 initial partial payment and the remainder of the $455 fee in monthly
installments.
Entered this 18th day of April, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?