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Almond v. Pollard

United States District Court, E.D. Wisconsin

February 23, 2017

DWAYNE ALMOND, Plaintiff,
v.
WILLIAM POLLARD, et al., Defendants. Appeal No. 17-1218

         ORDER DECLINING TO CERTIFY NOTICE OF APPEAL (DKT. NO. 116), DENYING PLAINTIFF'S MOTION FOR LEAVE TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 122), DENYING PLAINTIFF'S MOTION FOR ANSWER OF HIS DOCUMENT #94, 95 AND 97 (DKT. NO. 100), DENYING PLAINTIFF'S MOTION FOR ORDER TO STOP RETALIATION (DKT. NO. 102), DENYING PLAINTIFF'S MOTION TO SUBMIT EVIDENCE FROM SECOND EXPERT PSYCHIATRIST (DKT. NO. 103), DENYING PLAINTIFF'S MOTION TO FILE MENTAL ILLNESS RECORDS (DKT. NO. 104), DENYING PLAINTIFF'S MOTION FOR EMERGENCY ANSWER TO SUMMARY JUDGMENT (DKT. NO. 106), DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 106), DENYING PLAINTIFF'S MOTION FOR ANSWERING SERIOUS MOTIONS (DKT. NO. 107), DENYING PLAINTIFF'S MOTION FOR ORDER PLACING PLAINTIFF IN ONE OF TWO SPECIAL MANAGEMENT UNITS (DKT. NO. 108), DENYING PLAINTIFF'S MOTION FOR ANSWER TO MOTION TO SUMMARY JUDGMENT (DKT. NO. 110), DENYING PLAINTIFF'S MOTION FOR ANSWER TO SUMMARY JUDGMENT (DKT. NO. 111), DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 113), DENYING PLAINTIFF'S MOTION FOR ANSWER TO MOTION FOR SUMMARY JUDGMENT (DKT. NO. 114), AND DENYING PLAINTIFF'S MOTION FOR ORDER TO QUESTION PREJUDICE TO PLAINTIFF'S MOTIONS (DKT. NO. 115)

          HON. PAMELA PEPPER United States District Judge.

         The parties have filed cross-motions for summary judgment, which are fully briefed and ready for resolution. The court will issue a separate order addressing those motions. After the parties had fully briefed the summary judgment motion, however, the plaintiff filed a number of motions. He also filed a notice of appeal, along with a motion for leave to proceed without prepayment of the appeal fee. The court will address all of these non-dispositive motions in this order.

         I. Notice of Appeal (Dkt. No. 116) and Motion to Proceed Without Prepayment of Appeal Fee (Dkt. No. 122)

         A. January 27, 2017 Notice of Appeal

         On January 27, 2017, the plaintiff filed a “notice of appeal to certify an interlocutory appeal of the court's order of May 30, 2016.”[1] Dkt. No. 116. He states that the court has shown prejudice to many of the serious motions he has filed, and he takes issue with the fact that the court hasn't issued an order on the summary judgment motions. Dkt. No. 116 at 1, 2.

         The history leading to this motion is somewhat convoluted, mostly because the plaintiff appeals non-dispositive orders (orders that don't resolve the whole case) with some regularity. On February 24, 2016, the defendants filed a motion for summary judgment. Dkt. No. 73. Under the court's scheduling order, dkt. no. 59, the plaintiff's response to that motion was due within thirty days-that is, by March 25, 2016. The plaintiff, however, did not file a response to the motion within thirty days, or even within sixty days. Finally, on May 4, 2016, the court issued an order, telling the plaintiff that if he did not file his response by May 27, 2016, the court could dismiss his case for failure to prosecute. Dkt. No. 89. The May 4 order did not dismiss the plaintiff's case; it warned him that if he didn't respond to the defendants' summary judgment motion, it might dismiss his case.

         On May 16, 2016, the clerk's office received from the plaintiff a notice of appeal. Dkt. No. 90. The plaintiff had dated the notice April 25, 2016, id. at 10, and the first paragraph or so of the notice indicates that the plaintiff was appealing a March 2016 order dismissing the plaintiff's motion for summary judgment. Id. at 1-2. The court did not issue any orders in this case in March 2016. Nor had the court denied the plaintiff's motion for summary judgment. (He filed that motion prematurely in on February 9, 2015, dkt. no. 25; the court denied it without prejudice on April 29, 2015, dkt. no. 42, then reinstated it on December 18, 2015. The defendants filed their opposition brief to the motion on February 26, 2016. Dkt. No. 74. Given that, the clerk's office docketed the May 16, 2016 notice of appeal as an appeal from the court's May 4, 2016 order requiring the plaintiff to file a response to the defendants' motion for summary judgment by a date certain.

         Eight days after it received the notice of appeal, the clerk's office received from the plaintiff a motion to proceed without prepayment of the filing fee. Dkt. No. 94. On May 31, 2016 (not May 30), the court denied that motion. Dkt. No. 97. In that order (which the plaintiff now seeks to appeal), the court reiterated that it had not dismissed the plaintiff's motion for summary judgment or his case-it had only given him a deadline by which to apply. Dkt. No. 97 at 2. It noted that the plaintiff had filed his response by the deadline the court had ordered, and explained that once the defendants had filed their reply, the court would resolve both the defendants' motion and the plaintiff's motion. Id. The court continues to work on the order resolving the summary judgment motions, and will issue an order as soon as it is able to do so.

         A party may take an interlocutory appeal (an appeal from an order that does not resolve the case) under 28 U.S.C. §1292(b) if the district court certifies that the otherwise unappealable order involves a (1) controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. §1292(b). There is no basis to certify an interlocutory appeal of the court's May 31, 2016 order. The order did nothing more than deny the plaintiff's motion to proceed with his appeal (of the court's order setting a deadline for him to respond to the defendants' summary judgment motion-a deadline he has met) without paying the filing fee. The appeal does not involve a controlling question of law, and will not materially advance the termination of this litigation.

         B. February 13, 2017 Motion for Leave to Proceed Without Prepaying the Filing Fee

         Next, the court considers the plaintiff's motion to appeal in forma pauperis. Dkt. No. 122. Under the Prison Litigation Reform Act, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis,

if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. §1915(g). When determining whether a prisoner has acquired three “strikes” under §1915(g), the court must consider prisoner actions dismissed on any of the three enumerated grounds either before and after enactment of the Prison Litigation Reform Act. Evans v. Ill. Dep't of Corr., 150 F.3d 810, 811 (7th Cir. 1998).

         The plaintiff has accumulated several “strikes”: (1) Almond v. Wisconsin, et al., Case No. 06-C-447-C (W.D. Wis.); (2) Almond v. Wisconsin, Case No. 06-C-448-C (W.D. Wis.); (3) Almond v. Wisconsin, Case No. 06-C-449-C (W.D. Wis); and Almond v. Glinski, Case No. 14-CV-1336-pp (E.D. Wis.). The plaintiff states in his notice of appeal that he has submitted two expert psychiatrist statements (Dkt. Nos. 103, 104) showing that he has schizoaffective disorder and that he is under imminent danger of serious physical injury. Dkt. No. 116 at 2.

         The first filing, Docket Number 103, is the “Plaintiff's Motion for Submitting Second Proved [sic] of ‘Expert Psychiatrist' in Memphis, Tennessee, who Recognized that Almond Suffers from Serious Mental Health Issues and that Helped him get a Prescription for Haldol.” Dkt. No. 103 at 1. He references an attached expert psychiatrist report that proves that he suffers from a chronic mental illness, Exhibit A. Exhibit A, however, does not state that the plaintiff suffers from a mental illness. See Dkt. No. 103-1.

         The plaintiff's second filing, Docket Number 104, is his “Motion for Permission to Submit[] ‘Evidences' of Mental Illness/Records, of: Case Management, Inc., Psychiatric Evaluation; Memphis, Tennessee (“P.A.T.H.”), and also (“DOC”) Psychiatrist - Drinka, Joseph, M.D., of MSDF.” The plaintiff states that his attached exhibits show that two psychiatrists recognized that he suffers from serious mental health issues and that they helped him get a prescription for Haldol, Exhibits A-J. Dkt. No. 104 at 2. The plaintiff's exhibits include a “Psychiatric Report - Initial” of the plaintiff, conducted by Dr. Joseph Drinka on May 18, 2016, while the plaintiff was confined at the Milwaukee Secure Detention Facility (MSDF). Dkt No. 104-1 at 5-8. After what appears to have been an extensive examination, Dr. Drinka diagnosed the plaintiff with Schizoaffective disorder, ruled out malingering, found that the plaintiff had a cocaine use disorder that was in remission, and found that he had a cannabis use disorder that was in remission. Id. at 7. Despite Dr. Drinka's report and diagnoses, the plaintiff apparently believes that staff at MSDF are not adequately treating his serious mental health issues.

         The plaintiff's filings do not establish that he is under imminent danger of serious physical injury for the purposes of his appeal sufficient to avoid a strike. He no longer was at MSDF when he filed his notice of appeal. (On January 3, 2017, the plaintiff notified the court that he had been transferred to the Wisconsin Resource Center.[2]) The court previously has determined that the plaintiff wasn't under imminent danger of serious physical injury, dkt. no. 42 at 8-9, and his more recent filings do not change that determination. Therefore, because the plaintiff has three “strikes, ” and because the court continues to find that he is not under imminent danger of serious physical injury, the court will deny the plaintiff's motion for leave to proceed in forma pauperis.

         The plaintiff incurred the filing fee by filing the notice of appeal. Newlin v. Helman, 123 F.3d 429, 433-34 (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 fact that this court is denying the request to proceed in forma pauperis on appeal means that the full filing fee of $505.00 is due within fourteen days of this order. I ...


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