Formanack, Michaelene v. Rios, Rosie

Filing 18

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Signed by District Judge James D. Peterson on 12/10/2015. (jef),(ps)

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

MICHAELENE JO FORMANACK,
ORDER
Plaintiff,
v.

14-cv-859-jdp

ROSIE RIOS,
Defendant.

Plaintiff Michaelene Jo Formanack, a resident of Elmwood, Wisconsin, filed this case
regarding the government’s use of her “de facto name” and other frivolous “sovereign citizen”
theories of government illegitimacy. Judgment was entered in this case after I dismissed the
proposed lawsuit as frivolous. Dkt. 9 and Dkt. 10. I also denied a motion by plaintiff to
amend the complaint that had crossed in the mail with the order dismissing the case. Dkt.
12. Now plaintiff has filed a notice of appeal, Dkt. 13. She does not include the $505
appellate filing fee, so I will construe her notice of appeal as also requesting 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” for purposes of § 1915(g). 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 both because she has submitted nothing indicating her indigence and because I am
certifying that her 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 clearly meritless claims on which I denied her leave to
proceed. Moreover, she has not shown any legally meritorious basis for her appeal. Therefore,
I must certify that the appeal is not taken in good faith.
This means that plaintiff cannot proceed with her appeal without prepaying the $505
filing fee, unless the court of appeals gives her 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 her motion an affidavit as described in the first paragraph of Rule 24(a),
with a statement of the issues that she intends to argue on appeal. Also, she must submit a
copy of this order. Plaintiff should be aware that she must file these documents in addition to
the notice of appeal that she has previously filed. If she 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 her appeal further. If she does not pay the fees within the deadline set,
it is possible that the court of appeals will dismiss plaintiff’s appeal.

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ORDER
IT IS ORDERED that plaintiff Michaelene Jo Formanack’s motion for leave to
proceed in forma pauperis on appeal is DENIED, because she has not proven her indigence and
because I certify that her appeal is not taken in good faith.
Entered December 10, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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