United States District Court, E.D. Wisconsin
ADAM A. LOCKE, Plaintiff-Appellant,
DAVID BETH, et al., Defendants-Appellees.
DECISION AND ORDER
William C. Griesbach, Chief Judge
plaintiff, a state prisoner at all relevant times and who is
proceeding without the assistance of counsel, brought a civil
action in this court under 42 U.S.C. § 1983, alleging
that his civil rights were violated. ECF No. 1. On December
22, 2017, Locke was granted leave to proceed in forma
pauperis. ECF No. 8. In an order screening Locke's
amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B),
the court dismissed two defendants because Locke had failed
to state a claim against either defendant. ECF No. 24.
Because the court allowed Locke to proceed against the
remaining three defendants, no judgment was issued. The Locke
has appealed that decision, and currently before the court is
Locke's request to proceed in forma pauperis on
the Federal Rules of Appellate Procedure, a party who has
been granted leave to proceed in forma pauperis in
the district court may proceed in forma pauperis on
appeal 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)(3); see also 28 U.S.C. §
1915(a)(3). 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). To act in bad faith
means to sue on the basis of a claim that no reasonable
person could suppose to have any merit. See Lee v.
Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (holding
that an appeal in a frivolous suit cannot be “in good
faith” under 28 U.S.C. § 1915(a)(3) because
“good faith” must be viewed objectively). Thus,
the existence of any nonfrivolous issue on appeal is
sufficient to require the court to grant the petition.
seeks to challenge the court's determination that he
failed to state a claim against Sergeant Simpson or Kenosha
County. His appeal is procedurally and substantively
frivolous. It is substantively frivolous because he has
clearly failed to state a claim against either Sergeant
Simpson or Kenosha County. It is procedurally frivolous
because he is attempting to appeal a non-final order.
orders or decrees are not appealable as a matter of
right.” Coopers & Lybrand v. Livesay, 437
U.S. 463, 474 (1978) (citing 28 U.S.C. § 1292(b)). The
court's screening order which did not dismiss all of the
claims as to all of the parties not final. It is thus not
immediately appealable by right. See United States v.
Ettrick Wood Prods., Inc., 916 F.2d 1211, 1217 (7th Cir.
1990) (“Absent proper entry of judgment under Rule
54(b), an order that determines one claim in a multi-claim
case, or disposes of all claims against one or more parties
in a multi-party case, is not final and appealable.”).
district court judge may certify a question for an
interlocutory appeal where: (1) the order “involves a
controlling question of law”; (2) there is a
“substantial ground for difference of opinion”;
and (3) an immediate appeal “may materially advance the
ultimate termination of litigation.” 28 U.S.C. §
1292(b). However, Locke has not requested an appeal pursuant
to § 1292(b), nor has he addressed any of the required
criteria. Furthermore, the order Locke seeks to appeal could
not reasonably be understood as supplying a basis upon which
the § 1292(b) criteria could be satisfied. To the extent
that Locke intends for his notice of appeal to serve as a
request for leave to file an interlocutory appeal pursuant to
§ 1292(b), that request is denied.
left for determination is whether Locke is appealing in good
faith. An appeal may not be taken in forma pauperis
if the trial court certifies that it is not being taken in
good faith. 28 U.S.C. § 1915(a)(3). In Lee, the
Seventh Circuit Court of Appeals held that "good
faith" for purposes of § 1915 is the common
“legal meaning of the term, in which to sue in bad
faith means merely to sue on the basis of a frivolous claim,
which is to say a claim that no reasonable person could
suppose to have any merit.” 209 F.3d at 1026. After
reviewing the court's order and Locke's notice of
appeal, in light of Lee, this court concludes that
the plaintiff's appeal should be certified as not having
been taken in good faith because no reasonable person could
conclude that the court's order is a final order or is
appealable. Thus, the plaintiff's request to proceed
in forma pauperis on appeal is denied.
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, 209 F.3d at 1025. 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 14 days of this order. Id.; Seventh Circuit
Rule 3(b). Failure to pay in full within the time limits will
result in a dismissal. Newlin, 123 F.3d at 434.
IS THEREFORE ORDERED that the plaintiff's motion
for leave to proceed in forma pauperis on appeal is
hereby DENIED because this court certifies
that such appeal has been taken in BAD
IS FURTHER ORDERED that by March 29,
2018, the plaintiff shall forward to the Clerk of
Court the sum of $505.00 as the full filing fee in this
appeal. The plaintiff's failure to comply with this order
will result in dismissal of this appeal. The payment shall be
clearly identified by the case name and number assigned to
IS FURTHER ORDERED that copies of this order be sent
to the officer in charge of the agency where the plaintiff is
confined, and to PLRA Attorney, United States Court of
Appeals for the Seventh Circuit, 219 S. Dearborn Street, Rm.
2722, Chicago, ...