Solomon v. Sobek

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ LANIS E. SOLOMON, JR.,

Plaintiff, v. Case No. 18-cv-1922-pp Appeal No. 20-1679

SCOTT SOBEK, et al.,

Defendants. ______________________________________________________________________________

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO APPEAL WITHOUT PREPAYING THE FILING FEE (DKT. NO. 88) ______________________________________________________________________________

On March 27, 2020, the court dismissed this case. Dkt. No. 81. The plaintiff filed a notice of appeal on April 24, 2020. Dkt. No. 83. He has filed a motion for leave to proceed with his appeal without prepaying the appellate filing fee. Dkt. No. 88. Under the Prison Litigation Reform Act, a prisoner must pay the applicable filing fees in full for a civil case. 28 U.S.C. §1915(b). If a prisoner does not have the money to pay the $505 filing fee in advance for an appeal, he can request the court for permission to proceed without prepayment. For the court to consider such a request, the prisoner must complete a petition and affidavit and return it to the court, along with a certified copy of his trust account statement showing transactions for the prior six months. 28 U.S.C. §1915(a)(2). The court must assess an initial partial filing fee of twenty percent of the average monthly deposits to the plaintiff’s prison account or average monthly balance in the plaintiff's prison account for the six-month period immediately preceding the filing of the notice of appeal, whichever is greater. 28 U.S.C. §1915(b)(1). After the prisoner pays the initial fee, he must make monthly payments of twenty percent of the preceding month’s income until he pays the filing fee in

full. 28 U.S.C. §1915(b)(2). The agency that has custody of the prisoner will collect the money and send payments to the court. There are three grounds for denying a prisoner-appellant’s request to proceed without prepaying the filing fee: the prisoner has not shown that he is indigent, the prisoner filed the appeal in bad faith, or the prisoner has three strikes. See 28 U.S.C. §§1915(a)(2)-(3), (g). Based on the plaintiff’s trust account (Dkt. No. 89), the court finds that the plaintiff is indigent, and the plaintiff has not accrued three strikes. That leaves only the question of whether

the plaintiff filed this appeal in good faith. If a court allowed a party to proceed without prepaying the filing fee in the district court, that party may proceed without prepaying the filing fee on appeal without further authorization, unless the district court certifies that the appeal is not taken in good faith or determines that the party is otherwise not entitled to proceed without prepaying the fee. Fed. R. App. P. 24(a). See also Celske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (“. . . a plaintiff who . . .

was allowed to proceed in forma pauperis in the district court retains his IFP status in the court of appeals unless there is a certification of bad faith.”). A district court should not apply an inappropriately high standard when making a good faith determination. Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998). An appeal taken in “good faith” is one that seeks review of any issue that is not frivolous, meaning that it involves “legal points arguable on their merits.” Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983) (quoting Anders v. California, 386 U.S. 738 (1967)); see also Coppedge v. United States, 369

U.S. 438, 445 (1962). On the other hand, an appeal taken in bad faith is one that is based on a frivolous claim, that is, a claim that no reasonable person could suppose has any merit. Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). The court sees no indication that the plaintiff is not appealing in good faith. Therefore, the court will grant his motion to proceed on appeal without prepaying the filing fee. The plaintiff has filed a certified copy of his prison trust account

statement for the six-month period immediately preceding the filing of his notice of appeal. A review of this information reveals that the plaintiff lacks funds to pay an initial partial filing fee, so the court will waive the initial partial filing fee. 28 U.S.C. §1915(b)(4). The plaintiff must pay the full appellate filing fee under 28 U.S.C. §1915(b)(2). Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997), rev’d on other grounds by, Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000). The court GRANTS the plaintiff’s motion for leave to proceed on appeal

without prepaying the filing fee. Dkt. No. 88. The court WAIVES the initial partial filing fee for this appeal. The court will send a copy of this order to the officer in charge of the agency where the plaintiff is confined and to Dennis Brand, 821 W. State Street, Room 224, Milwaukee, WI 53233. The court ORDERS that the agency that has custody of the prisoner shall collect from his institution trust account the $505 appeal filing fee by collecting monthly payments from the plaintiff's prison trust account in an amount equal to 20% of the preceding month’s income credited to the prisoner’s trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2). The agency shall clearly identify the payments by the case name and number. If the plaintiff transfers to another institution—county, state or federal—the transferring institution shall forward a copy of this order, along with the plaintiffs remaining balance, to the receiving institution. The court will electronically provide a copy of this order to PLRA Attorney, United States Court of Appeals for the Seventh Circuit, through the court’s electronic case filing system. Dated at Milwaukee, Wisconsin this 8th day of July, 2020. BY THE COURT:

Chief United States District Judge