United States District Court, E.D. Wisconsin
ORDER REQUIRING APPELLANT TO FILE HIS SIX-MONTH TRUST
ACCOUNT STATEMENT BY A DATE CERTAIN
PAMELA PEPPER United States District Judge.
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).
Standard for Allowing Appellant To Proceed Without Prepaying
the Appellate Filing Fee
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).
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
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.
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.
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.
appellant has not had three prior cases dismissed because
they were frivolous or did not state a claim. He has not
accrued three strikes.
Appeal Taken in Good 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) (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)).
end of the court's order dismissing the appellant's
habeas petition, it declined to issue a ...