United States District Court, E.D. Wisconsin
22, 2017, Defendants filed a motion for summary judgment as
to Plaintiff's claims that they were deliberately
indifferent to his serious medical needs. (Docket #59).
Plaintiff responded, but did so in a fashion that was not in
compliance with the federal or local rules of civil procedure
governing summary-judgment practice. See (Docket
#66, #67); Fed.R.Civ.P. 56; Civ. L. R. 56(b)(2). As a result,
the Court determined that all of Defendants' proffered
facts were undisputed, and on the basis of those undisputed
facts, the Court was obliged to grant summary judgment to
Defendants. See (Docket #70 at 2-19). The Court
issued its order and judgment dismissing this action on June
23, 2017. (Docket #70, #71).
ten months later, on April 2, 2018, Plaintiff filed a motion
to alter or amend the Court's judgment, arguing that his
failure to make a proper summary judgment submission shows
that he should have been appointed counsel, particularly
after his jailhouse lawyer was transferred to another
institution. (Docket #72 at 1). He also appeared to dispute
the Court's substantive rulings, contending that the
Court inappropriately dismissed his complaints of pain from
the tooth injury that underlie this case. Id. at 2.
The Court construed the motion as seeking relief under
Federal Rules of Civil Procedure 59(e) and 60(b), and it
denied the motion in an order dated April 9, 2018. (Docket
filed a notice of appeal on May 23, 2018, seeking to appeal
both the Court's June 23, 2017 judgment and its April 9,
2018 order denying him relief from that judgment. (Docket
#74). He also filed a motion for leave to use funds from his
release account to pay the appellate initial partial filing
fee (“IPFF”). (Docket #76); 28 U.S.C. §
1915(b)(1). However, the Court cannot assess an IPFF on
appeal unless and until Plaintiff is granted leave to proceed
in forma pauperis on appeal pursuant to 28 U.S.C.
§ 1915. Plaintiff has not asked for or been granted such
leave. However, to ensure expeditious resolution of the
matter of the appellate fee, the Court will construe
Plaintiff's filing as including a request for leave to
proceed in forma pauperis on appeal. For the reasons
stated below, the Court will deny that request.
a prisoner proceeding pro se, may not proceed in
forma pauperis on appeal if the Court certifies in
writing that the appeal is not taken in “good
faith.” 28 U.S.C. § 1915(a)(3). To determine
whether a prisoner takes an appeal in “good faith,
” the Court must determine whether “a reasonable
person could suppose that the appeal has some merit.”
Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir.
2000); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir.
2000). An appeal is taken in “good faith” when it
seeks review of an issue that is not clearly frivolous.
Lee, 209 F.3d at 1026.
notice of appeal gives no detail regarding the alleged errors
requiring appellate review. See (Docket #74). His
motion for leave to proceed in forma pauperis on
appeal is likewise devoid of any mention of the findings of
the Court which he plans to challenge on appeal. See
(Docket #76 at 1). This dearth of information makes it
impossible for this Court to find that the appeal has any
the Court does not independently discern any reversible error
it committed in dismissing Plaintiff's claims or his
motion to alter or amend the judgment. First, his case was
undermined in large part due to his own failure to uphold his
obligations as a litigant, including responding appropriately
to Defendants' motion for summary judgment. Second, the
Court properly denied Plaintiff's late-coming motion for
relief from the judgment, which simply rehashed previously
stated arguments and made threadbare assertions that
appointment of counsel was warranted. Absent any suggestion
that these rulings were erroneous, the Court finds that
Plaintiff's appeal is wholly without merit. Finally, it
is worth noting that Plaintiff filed his notice of appeal
well after the expiration of the period in which to do so
afforded by Federal Rule of Appellate Procedure 4, which will
likely doom his appeal no matter its merit. See Fed.
R. App. 4(a)(1)(A). For these reasons, the Court must deny
Plaintiff's request for leave to appeal in forma
the Court certifies that the appeal is not taken in good
faith, the Court provides the following information to
Plaintiff regarding proceeding before the Seventh Circuit.
Plaintiff will not be able to proceed on appeal without
prepayment of the filing fee unless the Court of Appeals
gives him permission to do so. Plaintiff has thirty (30) days
from the date of this Order to request that the Seventh
Circuit review the Court's denial of his request for
leave to appeal in forma pauperis. Fed. R. App. P.
24. If Plaintiff requests review by the Seventh Circuit, he
must include an affidavit and statement of issues he intends
to present on appeal, pursuant to Federal Rule of Appellate
Procedure 24(a). He must also provide a copy of this Order,
in addition to the notice of appeal he previously filed. If
Plaintiff does not request review of this Order, the Seventh
Circuit may choose not to address the Court's denial of
Plaintiff's motion; instead, it may require Plaintiff to
pay the full filing fee before it considers his case. Failure
to pay a required fee may result in dismissal of the appeal.
IT IS ORDERED that Plaintiff's motion
for leave to appeal without prepayment of the filing fee
(Docket #76) be and the same is hereby
IS FURTHER ORDERED that a copy of this order be sent
to PLRA Attorney, United States Court of Appeals for the
Seventh Circuit, 219 S. ...