Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harris v. Smith

United States District Court, E.D. Wisconsin

May 14, 2018

JEFFREY HARRIS, Petitioner/Appellant
v.
JUDY SMITH, Warden, Oshkosh Correctional Institution Respondent/Appellee.

          ORDER REQUIRING APPELLANT TO FILE HIS SIX-MONTH TRUST ACCOUNT STATEMENT BY A DATE CERTAIN

          HON. PAMELA PEPPER United States District Judge.

         On March 26, 2018, the court entered an ordered denying the appellant's request for habeas relief and dismissing the habeas petition. Dkt. No. 26. Two weeks later, on April 9, 2018, the appellant filed a notice of appeal of the court's March 26, 2018 decision. Dkt. No. 26. That same day, the appellant filed a motion for leave to appeal without prepayment of the filing fee. Dkt. No. 30. On April 16, 2018, the court of appeals referred the motion to this court, dkt. no. 38, because the district court handles these requests in the first instance, see Fed. R. App. P. 24(a)(1).

         I. Standard for Allowing Appellant To Proceed Without Prepaying the Appellate Filing Fee

         There are three grounds for denying a prisoner appellant's request to proceed without prepaying the filing fee: the prisoner has not established indigence, the appeal is in bad faith, or the prisoner has three strikes. See 28 U.S.C. §§1915(a)(2)-(3), (g).

         A. Indigence

         If the district court granted a party leave to proceed without prepaying the filing fee, that party may proceed without prepaying the filing fee in the court of appeals without further authorization unless the district court certifies that the party did not take the appeal in good faith, or determines that the party is otherwise not entitled to proceed without prepaying the filing fee. Fed. R. App. P. 24(a). See also, Delske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (". ... a plaintiff who . . . was allowed to proceed [without prepaying the filing fee] in the district court retains his [indigent] status in the court of appeals unless there is a certification of bad faith.")

         This court did not grant the appellant leave to proceed without paying the filing fee when considering his habeas petition. He filed a motion asking the court to grant him that leave, dkt. no. 2, but before the court ruled on the motion, the appellant paid the filing fee. Given that, the court must consider for the first time on appeal whether the appellant is indigent.

         Under the Prison Litigation Reform Act, a prisoner must pay the applicable filing fees in full for a civil case. 28 U.S.C. §1915(b). If a prisoner does not have the money to pay the $505 appellate filing fee in advance, he can ask to proceed without prepaying it. The appellant has asserted that he does not have the money to pay the filing fee. In the court of appeals, he filed an affidavit asserting that he has no income, no assets and no expenses. Dkt. No. 38 at 2-7. He indicated that he is unemployed, that he had lost nearly all his family members, and that he recently had a heart attack (and died) and that his health doesn't allow him to work. Id. at 7.

         Before a court can grant a prisoner's request to proceed without prepaying the filing fee, however, the court must assess an initial filing fee of twenty percent (20%) 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. 28 U.S.C. §1915(b)(1). The appellant has not filed his trust account statement for the six-month period prior to the date he filed the notice of appeal (in other words, his trust account statement for October 2017 through March 2018). Even though he has filed an affidavit indicating that he is indigent, the court cannot allow the appellant to proceed without prepaying the filing fee until he files the trust account statement. The court will give him a deadline for filing the trust account statement.

         B. Three Strikes

         The appellant has not had three prior cases dismissed because they were frivolous or did not state a claim. He has not accrued three strikes.

         C. Appeal Taken in Good Faith

         A 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) (quoting Anders v. California, 386 U.S. 738 (1967)); see also, Coppedge v. United States, 369 U.S. 438, 445 (1962)). Put another way, a litigant takes an appeal in good faith if "a reasonable person could suppose that the appeal has some merit." Walker v. D'Brien, 216 F.3d 626, 632 (7th Cir. 2000)). 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. 2000)).

         At the end of the court's order dismissing the appellant's habeas petition, it declined to issue a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.