Lewis, James v. McClean, Angela et al

Filing 182

ORDER granting plaintiff James A. Lewis's 177 Motion for Leave to Appeal in forma pauperis; granting 179 motion for preparation of transcripts at the government's expense. No later than May 1, 2019, Lewis shall submit a check or money order made payable to the Clerk of Court in the amount of $8.84 as an initial partial payment of the docketing fee for his appeal. Signed by District Judge James D. Peterson on 4/8/2019. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JAMES A. LEWIS,
Plaintiff,
v.

ORDER
14-cv-280-jdp
Appeal No. 19-1562

ANGELA McLEAN and
JOSEPH CICHANOWICZ.
Defendants.

Judgment was entered in this case on January 9, 2019, after a jury returned a verdict in
favor of defendants Angela McLean and Joseph Cichanowicz. I denied Lewis’s motion to alter
or amend the judgment, as well as his motion for reconsideration of that decision. Dkt. 165
and Dkt. 172. Now Lewis has filed a notice of appeal, Dkt. 176, and requests leave to proceed
without prepayment of the appellate docketing fee, Dkt. 177. His request for leave to proceed
in forma pauperis will be granted for reasons set forth briefly below.
Because Lewis is incarcerated, his case is governed by the Prisoner Litigation Reform
Act (“PLRA”), 28 U.S.C. § 1915(b), which requires indigent inmates to pay by installment the
entire filing fee for civil actions and appeals. Lewis has supplied an inmate trust fund account
statement so that a determination may be made as to whether he is indigent and, if so, what
amount must be assessed as an initial partial payment of the fee for his appeal. In making that
determination, the court must also certify whether an appeal is “not taken in good faith” or
that the party is “not otherwise entitled to proceed” as an indigent litigant 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.”).

From the financial information that Lewis provides, the court finds that he lacks
sufficient means to prepay the entire $505 appellate docketing fee. Because it does not appear
that Lewis has filed his appeal in bad faith or that pauper status is otherwise precluded by Fed.
R. App. P. 24(a), the court will grant his motion for leave to proceed in forma pauperis.
Although Lewis has been found eligible to proceed in forma pauperis, the PLRA requires
indigent inmates to submit an initial partial payment pursuant to the formula found in 28
U.S.C. § 1915(b)(1). Based on his inmate trust fund account statement, the court finds that
Lewis is able to make an initial partial filing fee payment of $8.84, which will be due no later
than May 1, 2019. Lewis shall pay the remainder of the $505 appellate docketing fee in
monthly installments according to 28 U.S.C. § 1915(b)(2).
Lewis has also filed a motion for preparation of the trial transcripts at government
expense. Under 28 U.S.C. § 753(f), a party proceeding in forma pauperis is entitled to a free
transcript if the party files an appeal and the court determines that the appeal “is not frivolous
(but presents a substantial question).” I am granting Lewis leave to proceed in forma pauperis
on his appeal and conclude that the appeal is not taken in bad faith. Although I see no error
in the court’s rulings or the jury verdict, I do not believe that the appeal is frivolous.
Accordingly I will grant Lewis’s motion.

ORDER
IT IS ORDERED that:
1. Plaintiff James A. Lewis’s request for leave to proceed in forma pauperis, Dkt. 177,
is GRANTED. The court certifies that Lewis’s notice of appeal is not taken in
bad faith for purposes of Fed. R. App. P. 24(a)(3).
2. No later than May 1, 2019, Lewis shall submit a check or money order made
payable to the Clerk of Court in the amount of $8.84 as an initial partial

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payment of the docketing fee for his appeal. If Lewis does not have the money
to make the initial partial appeal payment from his regular account, he will have
to arrange with prison authorities to pay some or all of the assessment from his
release account.
3. If Lewis fails to make his initial partial fee payment as directed by May 1, 2019,
the clerk’s office will notify the court of appeals so that it may take whatever
action it deems appropriate with respect to this appeal.
4. Lewis’s motion for preparation of transcripts at the government’s expense, Dkt.
179, is GRANTED. The court reporter is directed to prepare transcripts of the
January 7 and January 8, 2019 trial and furnish copies to Lewis and to the
government, with the fees to be paid by the United States, pursuant to 28 U.S.C.
§ 753(f).
Entered April 8, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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