United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
31, 2017, the Court granted Defendants' motion for
summary judgment and dismissed Plaintiff's case in its
entirety. (Docket #85, #86). Plaintiff filed a notice of
appeal on August 30, 2017. (Docket #92). Accompanying it is a
motion for leave to proceed in forma pauperis on
appeal. (Docket #93). For the reasons stated below, the Court
will grant that motion. Plaintiff also filed a motion to
alter or amend the Court's judgment, (Docket #98), which
the Court will deny.
Motion for Leave to Proceed In Forma Pauperis On
the Prison Litigation Reform Act, a prisoner must pay the
applicable filing fees in full for a civil action. 28 U.S.C.
§ 1915(b). If a prisoner does not have the money to pay
the $505.00 filing fee in advance for an appeal, he or she
can request leave to proceed in forma pauperis. To
proceed with an action or appeal in forma pauperis,
the prisoner must complete a petition and affidavit to
proceed in forma pauperis and return it to the court
along with a certified copy of the prisoner's trust
account statement showing transactions for the prior six
months. Id. § 1915(a)(2). The court must assess
an initial 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. Id.
the initial fee is paid, the prisoner must make monthly
payments of twenty percent of the preceding month's
income until the filing fee is paid in full. Id.
§ 1915(b)(2). The agency which has custody of the
prisoner will collect the money and send payments to the
court. No payment is required in months when the
prisoner's preceding month's income is $10.00 or
are three grounds for denying a prisoner appellant's
request to proceed in forma pauperis: the prisoner
has not established indigence, the appeal is in bad faith, or
the prisoner has three strikes. See Id. §§
1915(a)(2)-(3), (g). The Court finds that Plaintiff has
established that he is indigent and that he has not accrued
three strikes. That leaves only the question of whether
Plaintiff filed this appeal in good faith.
who has been granted leave to proceed in forma
pauperis in the district court may proceed in forma
pauperis 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 in forma pauperis. Fed. R. App.
P. 24(a); 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.”).
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)
(quotation omitted); 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.
Court does not find any indication that Plaintiff's
appeal is not taken in good faith, particularly given the
large number of legal claims and factual matters underlying
Plaintiff's claims, against the backdrop of the
exceedingly lenient standard of review. Thus, he will be
granted leave to proceed in forma pauperis on
with his request to proceed in forma pauperis,
Plaintiff 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 Plaintiff is required to pay an initial partial
filing fee of $286.92, as well as additional payments
pursuant to 28 U.S.C. § 1915(b)(2). Newlin v.
Helman, 123 F.3d 429, 434 (7th Cir. 1997), rev'd
on other grounds, Walker, 216 F.3d 626.
Plaintiff must pay this amount within thirty days from the
date of this Order or his appeal may be dismissed.
Motion to Alter or Amend the Judgment
noted, Plaintiff also filed with his notice of appeal a
motion pursuant to Federal Rule of Civil Procedure 59(e) to
alter or amend the Court's judgment in this case. (Docket
#98). Rule 59(e) empowers a court to alter or
amend a judgment on motion by a party. Fed.R.Civ.P. 59(e).
The party seeking relief under this Rule must establish
“a manifest error of law or present newly discovered
evidence.” Obriecht v. Raemisch, 517 F.3d 489,
494 (7th Cir. 2008). Whether to grant a motion to amend a
judgment “is entrusted to the sound judgment of the
district court, ” In re Prince, 85 F.3d 314,
324 (7th Cir. 1996), but the movant must first “clearly
establish” his right to relief, Romo v. Gulf Stream
Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th Cir. 2001). A
motion under Rule 59(e) is not an opportunity for a losing
party to reargue the merits of his case with arguments or
theories that could have been made before the court rendered
judgment. LB Credit Corp. v. Resolution Trust Corp.,
49 F.3d 1263, 1267 (7th Cir. 1995); Oto v. Metro. Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (“A
‘manifest error' is not demonstrated by the
disappointment of the losing party.”).
60(b) is similarly limited. That Rule offers relief from a
court's orders or judgments if a party can show
“the narrow grounds of mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, voidness, or
‘any other reason justifying relief from the operation
of the judgment.'” Tylon v. City of
Chicago, 97 F. App'x 680, 681 (7th Cir. 2004)
(quoting Fed.R.Civ.P. 60(b)(6)). As with Rule 59(e), Rule
60(b) relief “is an extraordinary remedy and is granted
only in exceptional circumstances.” Harrington v.
City of Chicago, 443 F.3d 542, 546 (7th Cir. 2006). The
court's determination is constrained only by its sound
discretion. Venson v. Altamirano, 749 F.3d 641, 656
(7th Cir. 2014).
Rule affords Plaintiff any relief here. First, his Rule 59(e)
motion had to be filed no later than twenty-eight days after
the entry of judgment. See Fed. R. Civ. P. 59(e).
The Court cannot extend this deadline. Id. 6(b)(2).
Thus, whatever its merit, Plaintiff's request under Rule
59(e) is ...