Germaine, John et al v. Hawks Quindel Ehlke & Perry, S.C. et al

Filing 14

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Signed by District Judge Barbara B. Crabb on 4/16/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOHN W. GERMAINE and
XIAOHONG ZHANG-GERMAINE,
ORDER
Plaintiff,
13-cv-823-bbc
v.
HAWKS QUINDEL EHLKE & PERRY, S.C.
and BARBARA ZACK QUINDEL,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - On March 19, 2014, I dismissed this case brought by plaintiffs John Germaine and
Xiaohong Zhang-Germaine for lack of subject matter jurisdiction. Now plaintiffs have filed
a notice of appeal of the March 19 decision.
Because they have not paid the $505 fee for filing an appeal, I construe plaintiffs’
notice as 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 taken 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). Plaintiffs’ request for leave to proceed in forma pauperis on appeal will be denied,
because I am certifying that their appeal is not taken in good faith.

1

In Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982), the court of appeals
instructed district courts to find bad faith in cases in which a plaintiff is appealing the same
claims the court found to be without legal merit. Lee v. Clinton, 209 F.3d 1025, 1027 (7th
Cir. 2000). Plaintiffs are trying to appeal the same claims that I dismissed for lack of subject
matter jurisdiction. Because there is no legally meritorious basis for plaintiffs’ appeal, I must
certify that the appeal is not taken in good faith.
Therefore, plaintiffs cannot proceed with their appeal without prepaying the $505
filing fee unless the court of appeals gives them permission to do so. Under Fed. R. App. P.
24, plaintiffs have 30 days from the date of this order in which to ask the court of appeals
to review this court’s denial of leave to proceed in forma pauperis on appeal. With their
motion, they must include an affidavit as described in the first paragraph of Fed. R. App. P.
24(a), with a statement of issues they intend to argue on appeal. Also, they must send along
a copy of this order. Plaintiff should be aware that they must file these documents in
addition to the notice of appeal they have filed previously.
If plaintiffs do 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 on appeal.
Instead, it may require plaintiffs to pay the entire $505 filing fee before it considers their
appeal. If plaintiffs do not pay the fee within the deadline set, it is possible the court of
appeals will dismiss the appeal.

2

ORDER
IT IS ORDERED that plaintiffs John Walter Germaine and Xiaohong ZhangGermaine’s request for leave to proceed in forma pauperis on appeal is DENIED. I certify
that their appeal is not taken in good faith. The clerk of court is directed to insure that
plaintiff’s obligation to pay the $505 fee for filing this appeal is reflected in the court’s
financial records.
Entered this 16th day of April, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

3