Tatum, Robert et al v. Meisner, Mike et al

Filing 48

ORDER denying 36 Motion for Reconsideration; denying 40 Motion for Leave to Appeal in forma pauperis. Signed by District Judge William M. Conley on 3/5/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBERT TATUM,
Plaintiff,
v.

ORDER
13-cv-44-wmc
Appeal No. 14-3679

MIKE MEISNER and CATHY JESS,
Defendants.
Plaintiff Robert Tatum filed a notice of appeal from this court’s November 18,
2014, order (dkt. #37), as well as a motion for leave to proceed in forma pauperis on
appeal (dkt. #40).1

Because the November 18 order is not a final order, the court

construes Tatum’s filings as a request for certification or leave to pursue an interlocutory
appeal under 28 U.S.C. §1292(b), which provides in relevant part:
When a district judge, in making in a civil action an order not
otherwise appealable 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
materially advance the ultimate termination of the litigation,
he shall so state in writing in such order.
This court’s November 18 order involves no apparent controlling question of law
on which there is substantial ground for differing opinion, nor does Tatum argue or show

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Because plaintiff’s December 9, 2014, filing could also be construed as a motion for
reconsideration, the court also docketed it as such. (Dkt. #36.) If construed as a motion
for reconsideration, this would be the fifth one filed based on this court’s screening of
Tatum’s complaint. The court denies any further request for reconsideration for the
same reasons as explained in the court’s prior opinion and orders. (See dkt. ##13, 15,
22, 30.)

otherwise.

Likewise, a prompt appeal from the screening order in this case will not

materially advance the ultimate outcome of this litigation.

Indeed, an interlocutory

appeal will delay resolution of Tatum’s remaining claims. Therefore, the court will deny
Tatum’s request for leave to take an interlocutory appeal pursuant to § 1292(b).
Even so, Tatum’s notice of appeal has triggered a financial obligation. Whether or
not his appeal is dismissed, the Seventh Circuit directs that an appellate docketing fee
($505) is due immediately upon the filing of a notice of appeal. Newlin v. Helman, 123
F.3d 429, 433-34 (7th Cir. 1997).

Tatum has filed a motion for leave to proceed

without prepayment of the appellate docketing fee. In determining whether a litigant is
eligible to proceed in forma pauperis on appeal, the court must find that he is indigent and,
in addition, that the appeal is taken in good faith for purposes of Fed. R. App. P.
24(a)(3). See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if
the court certifies in writing that it is not taken in good faith.”).
Since Tatum is attempting to appeal from an unappealable, non-final order, the
court cannot certify that the appeal is taken in good faith for purposes of Fed. R. App. P.
24(a)(3). Accordingly, his request for leave to proceed in forma pauperis on appeal must
be denied.
Because the court has certified that Tatum’s appeal is not taken in good faith, he
cannot proceed with his appeal without prepaying the $505 filing fee unless the court of
appeals gives him permission to do so. Pursuant to Fed. R. App. P. 24, Tatum has 30
days from the date of this order in which to ask the court of appeals to review this denial
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of leave to proceed in forma pauperis on appeal. With his motion and a certified copy of a
recent six-month trust fund account statement, he must include an affidavit as described
in the first paragraph of Fed. R. App. P. 24(a), along with a statement of issues he
intends to argue on appeal. He must also send include a copy of this order.
Plaintiff Tatum should be aware that he must file these documents in addition to
the notice of appeal he has already filed. If Tatum does not file a motion requesting
review of this order, the court of appeals may choose not to address the denial of leave to
proceed in forma pauperis. Instead, it may require him to pay the entire $505 filing fee
before it considers his appeal. If he does not pay the fee within the deadline set, it is also
possible that the court of appeals will simply dismiss the appeal. Given that he appears
to be attempting to appeal from a non-appealable, pre-judgment order, dismissal of his
appeal is likely in any event.

ORDER
IT IS ORDERED that:
1) Plaintiff Robert L. Tatum’s motion for reconsideration (dkt. #36) is DENIED.
2) Plaintiff Tatum’s requests for leave to take an interlocutory appeal (dkts.
##37 & 40) are DENIED.
3) The court CERTIFIES that Tatum’s appeal is not taken in good faith for
purposes of Fed. R. App. P. 24(a)(3) and DENIES his motion leave to proceed
in forma pauperis (dkt. #40) in this case.

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4) Although this court has certified that plaintiff’s appeal is not taken in good
faith under Fed. R. App. P. 24(a)(3), Tatum is advised that he may challenge
this finding pursuant to Fed. R. App. P. 24(a)(5) by filing a separate motion to
proceed in forma pauperis on appeal with the Clerk of Court, United States
Court of Appeals for the Seventh Circuit, within thirty (30) days of the date
of this order. With that motion, he must include an affidavit as described in
the first paragraph of Fed. R. App. P. 24(a), along with (1) a statement of
issues he intends to argue on appeal and (2) a copy of this order. Plaintiff
should be aware that he must file these documents in addition to the notice of
appeal he has filed previously.
Entered this 5th day of March, 2015.
BY THE COURT:
/s/
_____________________
WILLIAM M. CONLEY
District Judge

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