Barrett, Carl v. Wallace, Leverne et al

Filing 151

ORDER granting 147 Motion for Leave to Appeal in forma pauperis; granting 148 request for preparation of transcripts at government's expense. Plaintiff may have until November 29, 2013, in which to submit a check or money order made payable to the clerk of court in the amount of $18.56. Signed by District Judge Barbara B. Crabb on 11/7/2013. (jef/cc: plaintiff, court reporter),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CARL BARRETT,
ORDER
Plaintiff,
12-cv-24-bbc
v.
LAVERNE WALLACE, SHAWN GALLINGER,
STACEY HOEM and WILLIAM BROWN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Judgment was entered in this case on October 2, 2013 following a jury trial and the
return of the jury’s verdict finding no liability on behalf of defendants. Now plaintiff has
filed a notice of appeal along with a request for leave to proceed on appeal in forma pauperis.
He has submitted a trust fund account statement for the six months preceding the filing of
his appeal. In addition, plaintiff has filed a motion for preparation of the trial transcript at
government expense.
Plaintiff’s request for leave to proceed in forma pauperis on appeal is governed by the
1996 Prison Litigation Reform Act. This means that this court must determine first whether
plaintiff’s request must be denied either because he has three strikes against him under 28
U.S.C. § 1915(g) or because the appeal is not taken in good faith. Plaintiff does not have
three strikes against him and I do not intend to certify that his appeal is not taken in good

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faith.
However, plaintiff is required to make an initial partial payment of the filing fee that
has been calculated from a certified copy of his trust fund account statement for the sixmonth period immediately preceding the filing of his notice of appeal.

28 U.S.C. §

1915(a)(2). From plaintiff’s trust fund account statement, I conclude that he qualifies for
indigent status and assess plaintiff an initial partial payment of the $455 fee for filing his
appeal in the amount of $18.56.
If plaintiff does not have the money to make the initial partial appeal payment in his
regular account, he will have to arrange with prison authorities to pay some or all of the
assessment from his release account. The only amount plaintiff must pay at this time is the
$18.56 initial partial appeal payment. Before prison officials take any portion of that
amount from plaintiff's release account, they may first take from plaintiff's regular account
whatever amount up to the full amount plaintiff owes. Plaintiff should show a copy of this
order to prison officials to make sure they are aware they should send plaintiff's initial partial
appeal payment to this court.
As to plaintiff’s request for preparation of the trial transcripts, under 28 U.S.C. §
753(f), a party proceeding in forma pauperis is entitled to a free transcript only after the
party files an appeal and the court determines that the appeal "is not frivolous (but presents
a substantial question)." A “substantial question” within the meaning of 28 U.S.C. § 753(f)
is one that is “reasonably debatable.” In granting plaintiff leave to proceed in forma pauperis
on his appeal, I have already concluded that the appeal is not taken in bad faith because it

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was sufficiently substantive to warrant a jury trial. Plaintiff states that the focus of his
appeal will be on the court’s repeated denials of his motions for the court’s assistance in
recruiting him counsel and his pro se performance at trial. Although I see no error in the
court’s rulings or the jury verdict, plaintiff’s points are reasonably debatable and the
transcript of the trial proceedings will be necessary for the court of appeals to consider this
issue. Accordingly I will grant plaintiff’s motion.

ORDER
IT IS ORDERED that
1. Plaintiff Carl Barrett’s request for leave to proceed in forma pauperis on appeal is
GRANTED. Plaintiff may have until November 29, 2013, in which to submit a check or
money order made payable to the clerk of court in the amount of $18.56. If, by November
29, 2013, plaintiff fails to pay the initial partial payment or explain his failure to do so, then
I will advise the court of appeals of his noncompliance in paying the assessment so that it
may take whatever steps it deems appropriate with respect to this appeal.
2. The clerk of court is directed to insure that the court’s financial records reflect
plaintiff’s obligation to pay the $18.56 initial partial payment and the remainder of the
$455 fee in monthly installments.
3.

Plaintiff’s request for preparation of transcripts at government's expense is

GRANTED. The court reporter is directed to prepare a transcript of the October 1, 2013
final pretrial conference and the October 1, 2013 trial and furnish copies to plaintiff and to

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the government, with the fees to be paid by the United States, pursuant to 28 U.S.C. §
753(f).
Entered this 7th day of November, 2013.
BY THE COURT:
/d/
_____________________________
BARBARA B. CRABB
District Judge

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