Norwood, Charles v. Tobiasz et al

Filing 83

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Signed by District Judge Barbara B. Crabb on 12/13/2012. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CHARLES NORWOOD,
aka MS. CHELSY,
ORDER
Plaintiff,
11-cv-507-bbc
v.
DR. TOBIASZ, DR. GARBELMAN,
DR. CALLISTER, MR. POLLARD,
JAMES MUENCHOW, CYNTHIA THORPE,
MICHAEL MEISNER, DON STRAHOTA,
WELCOME ROSE, MELISSA ROBERTS
and SCHWOCHERT,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Judgment was entered in this case on November 16, 2012, granting defendants’
motion for summary judgment. Now plaintiff Charles Norwood has filed a “Notice to
Reserve the Right to Appeal” in which she states that she1 wishes to appeal this court’s
decision, but because her property was withheld from November 21, 2012 until December
3, 2012, she could not file a formal notice of appeal. Dkt. #80. From plaintiff’s statements,
I conclude that it is appropriate to construe her submission as a notice of appeal. In
addition, because plaintiff has not paid the $455 fee for filing a notice of appeal, I construe

1

Plaintiff refers to herself as a “transsexual female, so I will refer to plaintiff using
female pronouns.

1

the notice as including a request for leave to proceed in forma pauperis on appeal. A district
court has authority to deny a request for leave to proceed in forma pauperis under 28 U.S.C.
§ 1915 for one or more of the following reasons: the litigant wishing to take an appeal has
not established indigence, the appeal is in bad faith or the litigant is a prisoner and has three
strikes. § 1915(a)(1),(3) and (g). Sperow v. Melvin, 153 F.3d 780, 781 (7th Cir. 1998).
Plaintiff has accumulated the following three strikes: Norwood v. Hamblin, 04-cv-813-bbc
(November 24, 2004); Norwood v. Hamblin, 04-cv-846-bbc (November 24, 2004); and
Norwood v. Hamblin, 04-cv-854-bbc (December 2, 2004).
Because plaintiff has accumulated three strikes, she cannot file any new lawsuit or an
appeal without prepaying the filing fee so long as she is incarcerated unless she can show that
she is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Plaintiff has not
made the required showing of imminent danger of a serious physical injury in this case; the
facts adduced by the parties at summary judgment showed that plaintiff is now receiving the
hormone treatment that she had previously requested. Therefore, she cannot take advantage
of the initial partial payment provision of § 1915.

She owes the $455 fee in full

immediately.
Plaintiff may delay payment of the $455 fee under one other circumstance; that is,
if she challenges in the court of appeals within thirty days of the date she receives this order
the decision to deny her request for leave to proceed in forma pauperis on appeal because
of her § 1915(g) status. Fed. R. App. P. 24(a)(5). If the court of appeals decides that
plaintiff does not have three strikes, then the matter will be remanded to this court for a

2

determination whether plaintiff’s appeal is taken in good faith. If the court of appeals
determines that the district court was correct in finding that § 1915(g) bars plaintiff from
taking her appeal in forma pauperis, the $455 filing fee payment will be due in full
immediately. 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 plaintiff Charles Norwood’s request for leave to proceed in
forma pauperis on appeal is DENIED because three strikes have been recorded against
plaintiff under 28 U.S.C. § 1915(g). Further, IT IS ORDERED that the clerk of court insure
that plaintiff’s obligation to pay the $455 is reflected in this court’s financial records.
Entered this 13th day of December, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

3