United States District Court, E.D. Wisconsin
KELLEY J. BRAND, Plaintiff-Appellant,
JEAN ZATE, et al., Defendants-Appellees.
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Kelley Brand, representing herself, brought a civil action in
this court challenging the removal of her guardianship over
her son in state court. On March 15, 2018, Brand was granted
leave to proceed in forma pauperis, but in the same
order her case was dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) as frivolous and for failure to state a claim.
On the same day, judgment was entered dismissing the action.
Brand appealed, and currently before the court is the
determination of whether her appeal is in good faith.
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.
complaint alleged that seven defendants, including Langlade
County Judge John B. Rhode, her public defender Jessica
Schuster, and the guardian ad litem Deborah Ratfield, were
responsible for removing her guardianship over her son from
her. She asked the court to reinstate her guardianship and
fire the defendants from their jobs. Brand's complaint
was dismissed because the court does not have jurisdiction to
hear it. To the extent that her son's guardianship
proceedings had been completed, the court was barred by the
Rooker-Feldman doctrine from reviewing a state court
judgment. To the extent that her son's guardianship
proceedings were still on-going, the court was barred by the
Younger abstention doctrine.
now states that she is appealing because she
“didn't expect to have to deliver the whole story
in writing before the court hearing was even heard.”
ECF No. 7. She asserts that it was a crime to remove her as
guardian without notice of the hearings, yet it appears from
her complaint that she was present at the final hearing.
Regardless, her most recent factual allegations were not
contained in her original complaint, and are therefore not
properly brought before this court. More importantly, if she
was deprived of a statutory or constitutional procedural
protection by the state trial judge, her remedy is an appeal
to the Wisconsin Court of Appeals. There is no indication in
Brand's original complaint or later filings that she
filed an appeal.
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 plaintiff's claims in light of
Lee, I cannot currently certify that her appeal from
my dismissal of her case is in good faith. This is not to say
that Brand is subjectively attempting to act in bad faith.
Rather, it is to say that no reasonable person could read
Brand's complaint and find that this court could hear her
claims. As mentioned in the screening order, federal courts
are courts of limited jurisdiction; therefore, federal courts
can only hear the kinds of cases that the Constitution and
Congress authorize them to hear. And federal district courts
are not authorized review state guardianship proceedings,
which is what Brand is requesting. For these reasons, I
certify that Brand's appeal is not one that is being
taken in good faith. Her petition to proceed on appeal in
forma pauperis is therefore denied.
IS THEREFORE ORDERED that the plaintiff's in
forma pauperis on appeal is hereby
DENIED because this court certifies that
such appeal has been taken in BAD FAITH.
IS FURTHER ORDERED that Plaintiff must either
forward to the Clerk of Court the full filing fee of
$505 or file a motion to proceed on appeal
in forma pauperis in the court of appeals within 30 days
after service of the notice prescribed in Rule 24(a)(4). The
motion must include a copy of the affidavit filed in the
district court and the district court's statement of
reasons for its action. If no affidavit was filed in the
district court, the party must include the affidavit
prescribed by Rule 24(a)(1).
IS FURTHER ORDERED that pursuant to Federal Rule of
Appellate Procedure 24(a)(4), the Clerk shall send a copy of
this order to the ...