Flournoy, Michael v. Winnebago County Sheriff's Office et al

Filing 26

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Plaintiff's request for assistance in recruiting counsel for appeal is DENIED without prejudice to his refiling it with the court of appeals. Signed by District Judge James D. Peterson on 4/15/2015. (jef),(ps)

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

MICHAEL E. FLOURNOY,
ORDER
Plaintiff,
14-cv-528-jdp
App. No. 15-1728

v.

WINNEBAGO COUNTY SHERIFF’S OFFICE,
ROBERT BOB BAUDELIO JUANEZ,
LARRY MARINO, DANIEL FREEDLUND,
PETER DALPRA, JOSEPH BOOMER,
BRAD KISER, IASPARRO DOMINC,
CUNNINGHAM NICK, JULIE DODD,
NEAL C. GRUHN, WAYNE JACKOWSKI,
CRAIG SMITH, ADAM KING,
JOHN D. RICHARDSON, and DAN IVANCICH,
Defendants.

Judgment was entered in this case on March 10, 2015, after I dismissed pro se
plaintiff Michael Flournoy’s complaint for failure to state a claim upon which relief can be
granted. Dkt. 15 and Dkt. 16. Plaintiff moved for reconsideration of my order dated March
23, 2015, which I denied. Dkt. 18 and Dkt. 19. Now, plaintiff has filed a notice of appeal.
Dkt. 20. Because plaintiff has not paid the $505 fee for filing an appeal, I construe his notice
as a request for leave to proceed in forma pauperis on appeal.
Under 28 U.S.C. § 1915, a district court may deny a request for leave to proceed in
forma pauperis for one or more of the following reasons: the litigant wishing to take an appeal
has not established indigence; the appeal is not taken in good faith; or the litigant is a
prisoner and has three strikes. Sperow v. Melvin, 153 F.3d 780, 781 (7th Cir. 1998). I will
deny plaintiff’s request for leave to proceed in forma pauperis on appeal because I am certifying

that his appeal is not taken in good faith. The Seventh Circuit has instructed district courts
to find bad faith in cases in which a plaintiff is appealing the same claims that the court has
already found to be without legal merit. Lee v. Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000);
Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982) (per curiam). Here, plaintiff is trying to
appeal the same claims on which I denied him leave to proceed. But he has not shown any
legally meritorious basis for his appeal. Therefore, although I do not conclude that plaintiff is
motivated by any ill will, I must certify that the appeal is not taken in good faith.
Because I am certifying that plaintiff’s appeal is not taken in good faith, he cannot
proceed with his appeal without prepaying the $505 filing fee, unless the court of appeals
gives him permission to do so. Under Federal Rule of Appellate Procedure 24, plaintiff has 30
days from the date of this order to ask the court of appeals to review this court’s denial of
leave to proceed in forma pauperis on appeal. Plaintiff must include with his motion an
affidavit as described in the first paragraph of Rule 24(a), with a statement of the issues that
he intends to argue on appeal. Also, he must submit a copy of this order. Plaintiff should be
aware that he must file these documents in addition to the notice of appeal that he has
previously filed. If he does 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 plaintiff to pay the full $505 filing fee before it considers his appeal
further. If he does not pay the fees within the deadline set, it is possible that the court of
appeals will dismiss plaintiff’s appeal.
Finally, in his notice of appeal, plaintiff requests assistance in recruiting counsel for
appeal. Plaintiff’s motion is not properly raised in this court. If he wishes to be appointed

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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.

Plaintiff Michael Flournoy’s motion for leave to proceed in forma pauperis on
appeal, Dkt. 20, is DENIED. I certify that his appeal is not taken in good
faith.

2.

The clerk of court is directed to ensure that plaintiff’s obligation to pay the
$505 fee for filing his appeal is reflected in the court’s financial records.

3.

Plaintiff’s request for assistance in recruiting counsel for appeal is DENIED
without prejudice to his refiling it with the court of appeals.

Entered April 15, 2015.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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