Norwood v. Thurmer et al

Filing 22

Order denying Plaintiff's 13 Motion for court to certify interlocutory appeal may be taken; construing Notice of Appeal as Request to Proceed ifp and denying leave to proceed ifp. Signed by District Judge Barbara B. Crabb on 4/7/2010. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------C H A R LES NORWOOD, OR DER P l a i n t i ff , 0 9 - cv -7 3 8 - b b c v. M IK E THURMER, DON STRAHOTA, C.O. BEAHM, C .O . WOODS, C.O. TRITT, C.O. GORSKE, C .O . KEYS, C.O. UMENTUM, CAPT. O'DONOVAN, LT. BRAEMER, SGT. HILBERT, SGT. NAVIS, C.O. RUSSELL and other JANE or JOHN DOES in command center, SGT. LINN, DR. GARBLEMAN, ANGELA KROLL, JAMES MUENCHOW, SGT. ROBERTS, S. WIERENGA, DR. ANKARLO, D R . GRISDALE, ISMAEL OZANNE an d TOM GOZINSKE, Defendants. --------------------------------------------In an April 2, 2010 order, I allowed plaintiff Charles Norwood to proceed on a claim that various defendants are failing to protect him from self harm. Also in that order, I resp o nd e d to (1) plaintiff's notice of interlocutory appeal of the court's February 8, 2010 ord er advising him that his claims for past harm do not qualify under the imminent danger exception to 28 U.S.C. § 1915(g) and (2) his subsequent motion to voluntarily dismiss that app eal. I denied plaintiff's motion to voluntarily dismiss the interlocutory appeal because I do not have the authority to act on it. He should direct his request to the court of appeals

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rather than this court. However, in the event that plaintiff ultimately wishes to proceed with h is interlocutory appeal, I will address two issues. First, I understand plaintiff to be asking for certification that he can take an interlocutory appeal under 28 U.S.C. §1292(b) from the Februa ry 8, 2010 order. 28 U.S.C. § 1292(b) states in relevant part, When a district judge, in making in a civil action an order not otherwise app ealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may m aterially advance the ultimate termination of the litigation, he shall so state in writing in such order. There is not a substantial ground for a difference of opinion on the question whether plaintiff has struck out under § 1915(g) or whether his claims for past harm would qualify u nd er the imminent danger exception. Therefore, I will deny plaintiff's request for

certification that he can take an interlocutory appeal from the February 8, 2010 order in this case. N evertheless, plaintiff's filing of a notice of appeal triggers a financial obligation: he o w e s $455 fee for filing his notice of appeal. I will construe his notice of appeal as including a request to proceed in forma pauperis on appeal. However, I will deny that request because plaintiff has struck out under § 1915(g) and his appeal does not contain claims that qualify un der the imminent danger exception. i m m e d i a t e ly . Plaintiff may delay payment of the $455 fee under one circumstance: if he files a Therefore, he owes the $455 fee in this case

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m otio n challenging the decision to deny his request for leave to proceed in forma pauperis in the court of appeals within thirty days of the date he receives this order. Fed. R. App. P. 24(a)(5). He must include with his motion an affidavit as described in the first paragraph o f Fed. R. App. P. 24(a), with a statement of the issues he intends to argue on appeal. Also, he must send along a copy of this order. Plaintiff should be aware that he must file these do cu m ents in addition to the notice of appeal he has filed previously. If the court of appeals decides that plaintiff does not have three strikes, then the matter will be remanded to this co urt to determine whether plaintiff's appeal is taken in good faith. If the court of appeals d eterm in es that the district court was correct in finding that § 1915(g) bars plaintiff from taking his appeal in forma pauperis, the $455 filing fee will be due in full immediately. Alternatively, plaintiff may renew his request to voluntarily dismiss his appeal by filin g a motion with the court of appeals. Even in that event, plaintiff will still owe the $455 filing fee. Whatever the scenario, plaintiff is responsible for insuring that the required sum is remitted to the court at the appropriate time.

ORDER IT IS ORDERED that 1. Plaintiff Charles Norwood's motion for the court to certify that an interlocutory appeal may be taken from the February 8, 2010 order in these cases, dkt. #13 is DENIED. 3. Plaintiff's request for leave to proceed in forma pauperis on appeal, dkt. #13, is

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D EN IED because three strikes have been recorded against him under 28 U.S.C. § 1915(g). T h e 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 records. Entered this 7t h day of April, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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