Givens, Clarence v. Luedtke, Kenneth et al

Filing 14

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Signed by District Judge William M. Conley on 7/14/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CLARENCE GIVENS,
Plaintiff,

ORDER

v.
13-cv-848-wmc
KENNETH LUEDTKE, et al.,
Defendants.

Judgment was entered in this case on May 6, 2014 after the court dismissed plaintiff
Clarence Given’s claims as being barred by the governing statute of limitations and,
alternatively, for failure to state a claim upon which relief could be granted under § 1983.
Subsequently, Givens filed a timely motion to alter or amend the judgment pursuant to Fed.
R. Civ. P. 59(e), which was denied on June 12, 2014. Givens has now filed a notice of
appeal. (Dkt. # 10). Because he has not paid the appellate docketing fee, he presumably
requests leave to proceed 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 Givens 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 Givens is attempting to

raise on appeal the same legally frivolous 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 Clarence Givens’s 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), plaintiff 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 14th day of July, 2014.
BY THE COURT:

/s/
WILLIAM M. CONLEY
District Judge

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