United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER United States District Judge.
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.
Notice of Appeal (Dkt. No. 116) and Motion to Proceed
Without Prepayment of Appeal Fee (Dkt. No. 122)
January 27, 2017 Notice of Appeal
January 27, 2017, the plaintiff filed a “notice of
appeal to certify an interlocutory appeal of the court's
order of May 30, 2016.” 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.
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.
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
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.
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.
February 13, 2017 Motion for Leave to Proceed Without
Prepaying the Filing Fee
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
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.
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.
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.
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.
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.) 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.
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.