Miller, Brad v. Grosshans, William et al

Filing 21

ORDER certifying that plaintiff's appeal is not taken in good faith and denying plaintiff leave to proceed in forma pauperis on appeal. Plaintiff's request for appointment of counsel on appeal is denied without prejudice to his refiling it with the Court of Appeals. Signed by District Judge William M. Conley on 1/31/2014. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BRAD STEVEN MILLER,
Plaintiff,
v.

ORDER
13-cv-270-wmc
Appeal no. 14-1156

WILLIAM GROSSHANS, MARTY
ORDINANS, SHARON ZUNKER,
JERALD BURGE, MARY BARTELS,
SARAH PROFITT, SGT. HARTMAN,
OFFICER BARTELS, OFFICER SCHLISSLER
and OTHER JOHN DOE,
Defendants.

In 2013, state inmate Brad Miller filed a civil action pursuant to 42 U.S.C.
§ 1983, concerning various conditions of his confinement in 2004-05.

Recently, the

court denied him leave to proceed and dismissed this case under 28 U.S.C. § 1915A as
barred by the governing statute of limitations. Miller has now filed a notice of appeal.
Because he has submitted a certified trust fund account statement, Miller presumably
requests leave to proceed in forma pauperis.
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 not taken in
bad 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.”). According to the financial information that Miller has provided,
he appears to qualify for indigent status. Nevertheless, the court will not grant leave to
proceed in this instance. In Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982), the

Seventh Circuit instructed district courts to find bad faith where a plaintiff is appealing
the same claims that were found to be without legal merit. See Lee v. Clinton, 209 F.3d
1025, 1027 (7th Cir. 2000). Untimely claims such as those presented by Miller in this
case lack an arguable basis in law and are properly dismissed as frivolous. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Spearman v. Monterey Coal Co., 202 F.3d 274, 1999
WL 1054552, *1 (7th Cir. 1999) (unpublished). Considering the arguments raised in
his notice of appeal, Miller has not offered a persuasive explanation for his substantial
delay or his failure to seek relief within Wisconsin’s generous 6-year statute of
limitations.

See Dkt. # 17.

To the extent that Miller intends to pursue the same

untimely claims that he raised in his proposed complaint, the court concludes that the
appeal is not taken in good faith for purposes of Fed. R. App. P. 24(a)(3). Accordingly,
Miller’s request for leave to proceed in forma pauperis on appeal will be denied.
Finally, in his notice of appeal plaintiff includes a request for appointment of
counsel. That request will be denied because is not properly raised in this court. If
Miller wishes to be appointed counsel on appeal, he will have to make his request directly
to the Court of Appeals for the Seventh Circuit
ORDER
IT IS ORDERED that:
1.

The court CERTIFIES that plaintiff Brad Miller’s appeal is not taken in

good faith for purposes of Fed. R. App. P. 24(a)(3) and DENIES him leave to proceed in
forma pauperis in this case.
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2.

Although this court has certified that plaintiff’s appeal is not taken in good

faith under Fed. R. App. P. 24(a)(3), Miller 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 a statement of 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 documents in
addition to the notice of appeal he has filed previously.
3.

Plaintiff’s request for appointment of counsel on appeal is DENIED

without prejudice to his refiling it with the Court of Appeals.
Entered this 31st day of January, 2014.
BY THE COURT:
/s/
_____________________
WILLIAM M. CONLEY
District Judge

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