Evans, Eddie v. Raemisch, Rick et al

Filing 15

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. The court CERTIFIES that the appeal is not taken in good faith for purposes of Fed. R. App. P. 24(a)(3). Signed by District Judge William M. Conley on 11/18/2014. (elc),(ps)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN EDDIE GENE EVANS, Plaintiff, ORDER v. 13-cv-421-wmc App. No. 14-3527 RICK RAEMISCH, et al., Defendants. Judgment was entered in this case on November 7, 2014 after the court dismissed plaintiff Eddie Evan’s complaint with prejudice for failure to state a claim. Evans has now filed a notice of appeal. (Dkt. # 12). Evans has not paid the $505 appellate docketing fee, so this court construes Evan’s appeal to include a request for leave to proceed on appeal in forma pauperis. That request will be denied. 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.”). Although Evans has been found eligible to proceed as an indigent litigant previously in this case, the court cannot certify that the appeal is taken in good faith. In that respect, the United States Court of Appeals for the Seventh Circuit has instructed district courts to find bad faith where a plaintiff is appealing claims that have been dismissed as frivolous. See Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). To the extent that Evans is attempting to raise on appeal the claims he raised in his complaint, the court certifies that the appeal is not 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. ORDER IT IS ORDERED that: 1. The court CERTIFIES that the appeal is not taken in good faith for purposes of Fed. R. App. P. 24(a)(3). 2. Plaintiff Eddie G. Evans request for leave to proceed in forma pauperis is DENIED. 3. Although this court has certified that the appeal is not taken in good faith under Fed. R. App. P. 24(a)(3), Evans 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 twenty (20) days of the date of this order. Entered this 18th day of November, 2014. BY THE COURT: /s/ _____________________ WILLIAM M. CONLEY District Judge 2

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