Van Brunt v. State of Wisconsin et al

Filing 10

Order Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Appeal certified to not be taken in good faith. Signed by Chief Judge Barbara B. Crabb on 11/5/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------PH IL VAN BRUNT, ORDER P l a i n t i ff , 0 9 -c v -6 4 4 -s lc v. S T A T E OF WISCONSIN and U N IT E D STATES OF AMERICA, D efendan t. --------------------------------------------Plaintiff Phil Van Brunt has filed a notice of appeal from the judgment entered herein o n October 29, 2009, dismissing his case because the allegations of his complaint were le g a lly frivolous. Now before the court is plaintiff's notice of appeal. Because he has not paid the $455 fee for filing a notice of appeal, I construe the notice as including a request for leave to proceed in forma pauperis on appeal. Plaintiff's request for leave to proceed in forma pauperis on appeal will be denied, b ecau se 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 where a plaintiff is appealing the same claims the court found to be without legal merit in denying plaintiff leave to proceed on his complaint. Lee v. Clinton, 209 F.3d 1025, 1027

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(7th Cir. 2000). Plaintiff is trying to appeal the same claims I have found to lack legal merit. Because there is no legally meritorious basis for plaintiff's appeal, I must certify that the app eal is not taken in good faith. Because I am certifying plaintiff's appeal as not having been taken in good faith, plain tiff 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 plaintiff to pay the entire $455 filing fee before it considers his appeal. If plaintiff fails to p a y the fee within the deadline set, it is possible that the court of appeals will dismiss the a p p e a l.

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OR DER I T IS ORDERED that plaintiff's request for leave to proceed in forma pauperis on appeal, dkt. #13, 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 5t h day of November, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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