Johnson v. Hepp

Filing 11

DISREGARD - DOCKETED IN INCORRECT CASEOrder denying leave to proceed ifp on appeal. Appeal is not certified to be taken in good faith. Signed by Chief Judge Barbara B. Crabb on 12/7/09. (elc),(ps) Modified on 12/8/2009 (elc).

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

B AT T IT ES WESLEY, P e ti ti o n e r , v. P ET E R HUIBREGTSE, Warden, W isconsin Secure Program Facility, R IC K RAEMISCH, Secretary, Wisconsin D e partm en t of Corrections, and A L FO N S O GRAHAM, Chairperson, W isconsin Parole Board, R espo nd ents. OR DER 0 9 -c v -0 5 8 2 -s lc

O n November 24, 2009, this court entered a judgment, dismissing petitioner Battites W esley's application for a writ of habeas corpus without prejudice on the grounds that one o f his claims was not properly brought in a habeas petition and his other claims did not am ount to the denial of a constitutional right. Petitioner seeks to proceed in forma pauperis o n appeal from that judgment. Because petitioner challenged the actions of state corrections officials and not his conviction or sentence, he does not need a certificate of appealability. An derson v. Benik, 471 F.3d 811, 814 (7th Cir. 2006). However, unless his appeal is taken in good faith, he cannot proceed in forma pauperis on appeal. 28 U.S.C. § 1915(a)(3). To find that an appeal is in good faith, a court need find only that a reasonable p erso n could suppose the appeal has some merit. Walker v. O'Brien, 216 F.3d 626, 631-32

(7th Cir. 2000). I am unable to make this finding. Petitioner is free to contest his transfer to the Wisconsin Secure Program Facility by filing a civil rights lawsuit under § 1983. Further, because I dismissed the petition without prejudice, he may file a new habeas petition attacking his custody resulting from his disciplinary violations, provided he has specific facts to show that he was deprived of his rights to due process at a particular disciplinary hearing.

OR DER IT IS ORDERED that petitioner's request for permission to proceed in forma pauperis on appeal is DENIED because his appeal is not taken in good faith. E n tered this 7t h day of December, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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