United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
four cases filed by pro se plaintiff Patricia Williams are
before the court for three reasons. First, plaintiff has
filed a notice of appeal in all four cases related to the
court's decision to deny her motion to transfer the cases
to the Eastern District of Wisconsin. Second, in cases nos.
17-cv-253-bbc, 17-cv-254-bbc and 17-cv-255-bbc plaintiff has
filed what she calls a “motion to strike incorrect
information.” Third, in the same three cases, plaintiff
has filed what she calls a “motion for a temporary
restraining order.” For the reasons explained below, I
decline to certify that plaintiff may file an interlocutory
appeal; I conclude that plaintiff may not proceed on appeal
in forma pauperis; and I am denying her motions.
faces two procedural hurdles related to her notice of appeal.
First, because plaintiff is seeking to appeal an order that
is not final, I must decide whether to certify the appeal
under 28 U.S.C. § 1292(b). Second, plaintiff did not
accompany her notice with the $505 fee for filing an appeal,
so I construe her notice as including a motion to proceed
in forma pauperis.
may appeal a non-final decision in only rare situations.
Under 28 U.S.C. § 1292(b),
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order.
case, plaintiff has not met any of the requirements set out
in § 1292(b). First, I do not believe that there is a
substantial ground for a difference of opinion on the
question whether these cases should be transferred to the
Eastern District of Wisconsin. Plaintiff is suing a state
agency that is located in this district. She does not allege
that any of the events relevant to any of the cases occurred
in the Eastern District or that a substantial number of
defendants reside there. Second, an early appeal from the
orders will not materially advance the ultimate termination
of this litigation. Indeed, it may serve only to delay it.
The deadline for filing dispositive motions in 16-cv-830-bbc
is imminent, so it would make no sense to transfer that case
now. Accordingly, I decline to certify that plaintiff should
be permitted to file an interlocutory appeal.
next question is whether plaintiff should be permitted to
proceed in forma pauperis on appeal. A district
court has authority to deny a request for leave to proceed
in forma pauperis under 28 U.S.C. §
1915 for one or more of the following reasons: the litigant
wishing to take an appeal has not established indigence, the
appeal is in bad faith or the litigant is a prisoner and has
three strikes. § 1915(a)(1), (3) and (g); Sperow v.
Melvin, 153 F.3d 780, 781 (7th Cir. 1998). I will deny
plaintiff's motion for pauper status because I certify
that her appeal from an unappealable non-final order is not
taken in good faith.
I am certifying plaintiff's appeal as not having been
taken in good faith, plaintiff cannot proceed with her appeal
without prepaying the $505 filing fee unless the court of
appeals gives her permission to do so. Under Fed. R. App. P.
24, plaintiff has 30 days from the date of this order in
which to ask the court of appeals to review this court's
denial of leave to proceed in forma pauperis on
appeal. Her motion must be accompanied by an affidavit as
described in the first paragraph of Fed. R. App. P. 24(a) and
a copy of this order. Plaintiff should be aware that if the
court of appeals agrees with this court that the appeal is
not taken in good faith, it will send her an order requiring
her to pay all of the filing fee by a set deadline.
Ordinarily, if a plaintiff fails to pay the fee within the
deadline set, the court of appeals will dismiss the appeal.
Motion to “Strike”
denying plaintiff's “motion to strike incorrect
information” as unnecessary. Plaintiff objects to
information provided in defendants' answers and she
wishes to provide her version of events. However, it is not
necessary for plaintiff to respond to defendants' answer.
Indeed, Fed.R.Civ.P. 7(a)(7) forbids a plaintiff to submit a
reply to an answer unless the court directs a reply to be
filed. No such order has been made in this case.
is not prejudiced by Rule 7(a) because averments in pleadings
to which a response is not allowed are assumed to be denied.
Fed.R.Civ.P. 8(b)(6). Therefore, although plaintiff is not
permitted to respond to defendants' answers, the court
assumes that she has denied the factual statements and
affirmative defenses raised in the answers. The time for
presenting evidence in support of her claims is in the
context of a motion for summary judgment or at trial.