Schoenrock v. SOCIAL SECURITY ADMINISTRATION et al

Filing 21

Order Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Signed by Chief Judge Barbara B. Crabb on 3/12/2010. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN C O R EY SCHOENROCK, P l a i n t i ff , v. 0 9 - cv -0 5 6 5 - b b c M IC H A E L J. ASTRUE, Co m m issioner of Social Security, D efendan t. OR DER

O n February 4, 2010, this court entered an order and judgment dismissing plaintiff Co rey Schoenrock's appeal of a final decision of the Commissioner of Social Security on the gro un d that it was untimely. Plaintiff has now filed a notice of appeal. Because he has not paid the $455 filing and docketing fee, I presume that he seeks to proceed in forma pauperis. I have already found plaintiff to be indigent, so the only question I must decide is whether p l a i n tiff is taking his appeal in good faith. Fed. R. App. P. 24(a)(3)(A). Plaintiff has not asserted any grounds for his appeal and he has no meritorious argument to show that he is entitled to equitable tolling of the 60-day limitations period prescribed by the Social Security Act. Accordingly, I must certify that his appeal is not taken in good faith and deny his request for leave to proceed in forma pauperis on appeal. Because I am certifying plaintiff's appeal as not having been taken in good faith, p la in t iff cannot proceed with his appeal without prepaying the $455 filing fee unless the co urt of appeals gives him permission to do so. Under 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 choose not to address this court's denial of leave to proceed in forma pauperis on appeal. Instead, it will requ ire 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 appeal.

ORDER IT IS ORDERED that plaintiff Corey Schoenrock's request for leave to proceed in fo rm a pauperis on appeal 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 appeal is reflected in the court's financial record. Entered this 12t h day of March, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ _ B AR B AR A B. CRABB D istrict Judge

2