Garner, Oscar v. Kirby

Filing 63

ORDER denying 59 Motion for Leave to Appeal in forma pauperis; denying as moot 60 Motion for Use of Release Account Funds. Signed by District Judge James D. Peterson on 6/14/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OSCAR GARNER,
Plaintiff,
ORDER
v.
14-cv-545-jdp
App. No. 17-2070

OFFICER KIRBY,
Defendant.

On February 9, 2017, I granted defendant Officer Kirby’s motion for summary
judgment and dismissed this case. Dkt. 53. Now plaintiff Oscar Garner has filed a notice of
appeal and requests leave to proceed in forma pauperis. Dkt. 59. It appears that the notice of
appeal is untimely because it was not filed within 30 days after entry of judgment as required
by Federal Rule of Appellate Procedure 4. But because only the court of appeals may
determine whether it has jurisdiction to entertain an appeal, Hyche v. Christensen, 170 F.3d
769, 770 (7th Cir. 1999), overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir.
2000), I will consider only whether Garner may proceed in forma pauperis.
Garner’s request for leave to proceed in forma pauperis on appeal is governed by the
1996 Prison Litigation Reform Act. This means that this court must determine first whether
Garner’s request must be denied either because he has three strikes against him under
28 U.S.C. § 1915(g) or because the appeal is not taken in good faith. Garner does not have
three strikes against him, but I will deny Garner’s request because his appeal is not taken in
good faith. An appeal is taken in good faith when a reasonable person could suppose that the
appeal has some merit. Lee, 209 F.3d at 1026. But I cannot certify that Garner’s appeal is

taken in good faith. I granted Kirby’s motion for summary judgment because security camera
footage showed that Garner’s allegation about Kirby’s conduct was a lie. Garner has not
shown a legally meritorious basis for his appeal.
Because I am certifying that Garner’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, Garner has 30
days from the date of this order to ask the court of appeals to review this court’s denial of his
request for leave to proceed in forma pauperis on appeal. With his motion, he must include a
copy of this order in addition to the notice of appeal and affidavit he filed previously.
Garner has also filed a motion to use his release account funds to pay for the cost of
obtaining a copy of his six-month trust fund account statement and for paying the initial
partial filing fee for filing this appeal. Dkt. 60. Because I am certifying that his appeal is not
taken in good faith, Garner does not need a copy of his six-month trust fund account
statement, nor will the court assess him an initial partial filing fee, so I will deny this motion
as moot.
ORDER
IT IS ORDERED that:
1. Plaintiff Oscar Garner’s motion for leave to proceed in forma pauperis on appeal,
Dkt. 59, is DENIED because the court certifies that his appeal is not taken in
good faith. If Garner wishes to appeal this decision, he must follow the procedure
set out in Fed. R. App. P. 24(a)(5).

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2. Garner’s motion for use of release account funds to pay for a copy of his trust fund
account statement and for the initial partial filing fee in this appeal is DENIED as
moot.
Entered June 14, 2017.

BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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