Boyd, Vincent v. Heil, Chris et al

Filing 106

ORDER that Plaintiff Vincent Boyd's motion for to enter partial judgment, or, in the alternative, for leave to take an interlocutory appeal is DENIED. The court CERTIFIES that Boyd's appeal is not taken in good faith for purposes of Federal Rule of Appellate Procedure 24(a)(3) and DENIES his motion for leave to proceed in forma pauperis (dkt. # 103 ) in this case. Signed by District Judge William M. Conley on 11/20/2020. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
VINCENT E. BOYD,
Plaintiff,

OPINION AND ORDER

v.
17-cv-209-wmc
CHRIS HEIL, TANIA REINDL,
BRIAN FOSTER, MICHAEL
BAENEN, LT. SWIEKATOWSKI,
and LT. VANDEWALLE,
Defendants.
Previously the court granted pro se plaintiff Vincent Boyd leave to proceed in this
lawsuit pursuant to 42 U.S.C. § 1983, on First Amendment free speech and retaliation
claims against Green Bay Correctional officials, Chris Heil, Tania Reindl, Michael Baenen,
William Swiekatowski and Vandewalle, for their involvement in denying certain mail items
Boyd intended to send, and for punishing him for attempting to send items in violation of
orders limiting his communications. On October 23, 2020, the court entered an opinion
and order granting defendants’ motion for summary judgment as to Boyd’s First
Amendment claims against defendants Heil, Vandewalle, Baenen and Foster, but denied
their motion with respect to Boyd’s First Amendment claims against defendants Reindl
and Swiekatowski, arising from the confiscation of, and punishment for, Boyd’s attempt
to send his mother a letter dated August 27, 2013. (Dkt. #94.) The court further directed
the parties to brief whether Boyd might be entitled to judgment in his favor on those
remaining claims, as well as whether he is entitled to any damages.
The court recently took those follow-up submissions under advisement, but on

October 29, 2020, Boyd filed a notice of appeal to the court of appeals from that order
(dkt. #95), and on November 6, Boyd submitted his trust fund account statement (dkt.
#103), which the court construes as a motion for leave to appeal in forma pauperis. The
court further construes Boyd’s motion to include a motion for the entry of partial final
judgment pursuant to Federal Rule of Civil Procedure 54 as to defendants Heil,
Vandewalle, Baenen and Foster, or, in the alternative, a request to take an interlocutory
appeal.

For the following reasons, the court declines to enter judgment as to these

defendants, denies Boyd’s request to take an interlocutory appeal, and denies Boyd’s
request to proceed in forma pauperis on his appeal.
The purpose of Rule 54(b) is to avoid “piecemeal disposal of litigation.” Fed. R. Civ.
P. 54 advisory committee’s note.

Under this rule, a judge has the power to

enter final judgment whenever there are multiple parties following an order that finally
resolves a party’s liability, even though the case continues in the district court between the
other parties. As a general rule, however, the court of appeals frowns on the entry of
partial final judgments, unless the order to be appealed from finally resolves a party’s entire
liability. See Doe v. City of Chi., 360 F.3d 667, 673 (7th Cir. 2004) (judge has power to
enter final judgment under Rule 54(b), but not duty). The dismissal of Boyd’s claims
against Heil, Vandewalle, Baenen and Foster with prejudice fits into that category.
Still, entering a partial final judgment requires a court to determine that no just
reason for delay exists. Fed. R. Civ. P. 54(b). One “just reason” can be the need to develop
a factual basis for disputed questions of law, id.; another may be to relieve the court
of appeals of the need to familiarize itself with the factual and legal issues of a case more

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than once. Here, the court finds that there is a just reason for a short delay. The parties
recently completed briefing on whether the court should enter judgment in favor of Boyd
on his remaining First Amendment claims, and whether Boyd’s damages should be limited.
The court intends to promptly resolve those outstanding questions. Assuming the parties
will appeal the final judgment as to the other defendants, entering partial judgment with
respect to only some of Boyd’s First Amendment claims, and allowing immediate appeal of
those decisions would require the court of appeals to familiarize itself with the facts and
legal questions related to this case more than once. For that reason, it would be repetitive
and burdensome for the court of appeals to separately address his claims against the
dismissed defendants. Accordingly, the court will not will grant plaintiff’s motion for entry
of judgment pursuant to Rule 54(b) on First Amendment claims against defendants Heil,
Vandewalle, Baenen and Foster.
Since the court declines to enter partial judgment, to proceed with an interlocutory
appeal, Boyd would need to be identify a “controlling question of law as to which there is
substantial ground for difference of opinion,” the resolution of which would “materially
advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292. However, the
questions related to whether defendants would be entitled to qualified immunity or
whether plaintiff is entitled to judgment on the merits of Boyd’s First Amendment claims
against these defendants are not grounds for substantial difference of opinion that would
warrant an interlocutory appeal. “Section 1292(b) was not intended to make denials of
summary judgment routinely available”; the question of law refers to “a question of the
meaning of a statutory or constitutional provision, regulation, or common law doctrine

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rather than to whether the party opposing summary judgment had raised a genuine issue
of fact.” Ahrenholz Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000). In this
instance, although Boyd has not elaborated on the arguments he intends to raise on appeal,
there is no reason to infer that Boyd’s appeal would seek clarification on the meaning of
any constitutional provision, and instead it appears he intends to challenge the court’s
analysis of the material facts and First Amendment principles. Therefore, to the extent
Boyd is requesting to pursue an interlocutory appeal pursuant to § 1291(b), the court must
deny Boyd’s request.
Regardless, Boyd’s notice of appeal has triggered certain obligations. Whether or
not his appeal is dismissed, the Seventh Circuit directs that an appellate docketing fee
($505) is due immediately upon the filing of a notice of appeal. Newlin v. Helman, 123
F.3d 429, 433-34 (7th Cir. 1997). While Boyd seeks to proceed without prepayment of
the appellate docketing fee, this court must not only find that he is indigent and, therefore,
eligible to proceed in forma pauperis, but also that the appeal is taken in good faith for
purposes of Federal Rule of Appellate Procedure 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.”). Since the court has declined to certify its opinion and order as a
final judgment under Rule 54(b), or for interlocutory appeal, Boyd’s request for leave to
proceed in forma pauperis on appeal must be denied on the basis that it is not taken in good
faith.
Moreover, given that this court has refused to enter a partial judgment and denied
certification of and interlocutory appeal, Boyd cannot proceed with his appeal without

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prepaying the $505 filing fee unless the court of appeals gives his permission to do so.
Pursuant to Federal Rule of Appellate Procedure 24(a)(4) and (5), Boyd has 30 days from
the date of this order in which to file a motion in the court of appeals to review this denial
of leave to proceed in forma pauperis on appeal, should he wish to do so. Along with his
motion, Boyd must include an affidavit as described in Federal Rule of Appellate Procedure
24(a)(1), along with a statement of issues he intends to argue on appeal. Boyd must also
send along a copy of this order.
To be clear, he must file these documents in addition to the notice of appeal he has
filed previously. If he does not file a motion requesting review of this order certifying that
the appeal is not taken in good faith, the court of appeals may choose not to address the
denial of leave to proceed in forma pauperis. Instead, it may require Boyd to pay the entire
$505 filing fee before it considers his appeal. If he does not pay the fee within the 30-day
deadline set forth above, it is also possible that the court of appeals will dismiss the appeal.
Indeed, given that he appears to be attempting to appeal from a non-appealable, prejudgment order, dismissal of his appeal is likely in any event.

ORDER
IT IS ORDERED that:
1. Plaintiff Vincent Boyd’s motion for to enter partial judgment, or, in the
alternative, for leave to take an interlocutory appeal is DENIED.
2. The court CERTIFIES that Boyd’s appeal is not taken in good faith for
purposes of Federal Rule of Appellate Procedure 24(a)(3) and DENIES
his motion for leave to proceed in forma pauperis (dkt. #103) in this case.

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3. Although this court has certified that Boyd’s appeal is not taken in good
faith under Federal Rule of Appellate Procedure 24(a)(3), Wand is
advised that he may challenge this finding pursuant to Federal Rule of
Appellate Procedure 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 thirty (30) days of the date of
this order. With that motion, he must include an affidavit as described
in the first paragraph of Federal Rule of Appellate Procedure 24(a), along
with (1) a statement of issues he intends to argue on appeal and (2) a
copy of this order.
Entered this 20th of November, 2020.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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