United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE.
James Edward Grant brought claims that defendant prison
officials retaliated against him and used excessive force on
him while they escorted him to a disciplinary hearing, and
that he was sexually assaulted during a strip search while
housed at the Waupun Correctional Institution. I granted
summary judgment to defendants on all of Grant's claims
except his claim that defendant Jeffrey Gill retaliated
against him by using excessive force during the escort-it was
undisputed that Gill pushed him into the wall of a hearing
room at the conclusion of the escort. Those claims were tried
on December 13, 2017, with the jury finding no liability on
behalf of defendant Gill.
filed a notice of appeal, a motion for leave to proceed
in forma pauperis, and a motion for preparation of
trial transcripts at the government's expense. I withheld
rulings on those motions because Grant had not fully
supported them: he had not fully completed the affidavit
outlining his financial status, and he did not explain why he
wanted to appeal other than saying that he wanted to appeal
the jury's verdict. I gave Grant a short time to
supplement his materials. See Dkt. 100.
has provided supplemental materials, although his financial
affidavit is still incomplete-he continues to provide no
answer to the question asking whether he has funds in various
investment vehicles. See Dkt. 101. Nonetheless, even
assuming that the answer to that question is no, and that
Grant is indigent, I will deny his motion for in forma
pauperis status on appeal because I conclude that his
appeal is not taken in good faith.
28 U.S.C. § 1915(a)(3), a district court may deny a
request for leave to proceed in forma pauperis if
the appeal is “not taken in good faith.” See
also Fed. R. App. P. 24(a)(3). An appeal is taken in
good faith if “a reasonable person could suppose that
the appeal has some merit.” Walker v.
O'Brien, 216 F.3d 626, 632 (7th Cir. 2000). Now that
Grant has explained the grounds for his appeal, no reasonable
person could conclude that it has merit.
says that he “strongly believes that the jury erred in
its ruling, ” Dkt. 104, at 1, and then states reasons
why he thinks that Gill's and other defense
witnesses' testimony was not compelling. He says that
Gill “minimized” his actions and that other
defense witnesses lied when they said that they did not think
that Gill used excessive force against him, and that they
would have reported Gill had he done anything wrong. Grant
says that there are “grounds for impeachment” of
those witnesses. Id.
mere disagreement with the jury is not enough to win an
appeal. A court may set aside a verdict as contrary to the
manifest weight of the evidence “only if no rational
jury could have rendered the verdict.” Moore ex.
rel. Estate of Grady, v. Tuleja, 546 F.3d 423, 427 (7th
Cir. 2008). Grant did attempt to impeach Gill and the other
witnesses, but the jury must have accepted Gill's version
of the story: that it was necessary to subdue Grant because
he felt threatened by Grant glancing up at him. A rational
jury could have done so, because video of the escort shows
that Grant refused to follow Gill's directive to keep
looking straight ahead as they made their way toward the
hearing room, and Grant and Gill were the only eyewitnesses
to what happened inside the room. It was the jury's task
to decide who was more credible.
says that “[the] preponderance of evidence standard
should have been used, ” Dkt. 104, at 1, but I
instructed the jury to use that standard both before and
after trial, see Dkt. 87, at 7 (the court's
introductory jury instructions) and Dkt. 88, at 5-6 (the
court's post-trial jury instructions).
says, “Due to the harassment from defendant of both
depositions Mr. Grant fatally misstated facts of his meal and
complained about the meal. That tarnished Mr. Grant's
credibility and put him at risk or in harm's way for
impeachment.” Dkt. 104, at 1. I take him to be saying
that at his deposition he was unable to accurately recall the
details of an incident before the escort, in which he says
that Gill denied him a meal when he said he had a
disciplinary hearing that day, which showed Gill's
animosity toward Grant and his attempt to defend himself in
the disciplinary hearing. But Grant could not succeed on
appeal with an argument about being harassed at his
deposition, because he did not raise it during the
proceedings in this court. See, e.g., Stevens v.
Umsted, 131 F.3d 697, 705 (7th Cir. 1997) (“It is
axiomatic that arguments not raised below are waived on
no reasonable person could suppose that Grant's appeal
has any merit, I certify that it is not taken in good faith,
and I will deny his motion for leave to proceed in forma
pauperis on appeal. That means that Grant cannot proceed
with his appeal without prepaying the $505 filing fee, unless
the court of appeals gives him permission to do so. Under
Federal Rule of Appellate Procedure 24, Grant has 30 days
from the date of this order to ask the court of appeals to
review this court's denial of leave to proceed in
forma pauperis on appeal. Grant must include with his
motion a copy of his affidavit of indigency and a copy of
this order. If he does not file a motion requesting review of
this order, the court of appeals may choose not to address
the denial of leave to proceed in forma pauperis on
appeal. Instead, it may require Grant to pay the full $505
filing fee before it considers his appeal further. If he does
not pay the fees within the deadline set, it is possible that
the court of appeals will dismiss the appeal.
has also filed a motion for trial transcripts to be prepared
at government expense. But I can grant that motion only if I
conclude that he may proceed with his appeal in forma
pauperis and that “the appeal is not frivolous
(but presents a substantial question).” 28 U.S.C.
§ 753(f). Given my ruling denying Grant in forma
pauperis status, I will also deny his motion for
preparation of transcripts.
1. Plaintiff James Edward Grant's motion for leave to
proceed in forma pauperis on appeal, Dkt. 96, is
DENIED. I certify that his appeal is not taken in good faith.
If plaintiff wishes to appeal this decision, he must ...