United States District Court, E.D. Wisconsin
JOHN H. BALSEWICZ, also known as MELISSA BALSEWICZ, Plaintiff,
CRAIG BLUMER, SGT. DARRYL FRANKLIN, EDWARD KREMER, GERALD LENNOP, MICHAEL HELMEID, LINDSAY DANFORTH, JOHN BESSERT, BRIAN SCHRAA, JOHN LENZ, JENNIFER SRNKA, and STEVE SCHMIDT, Defendants.
STADTMUELLER, U.S. DISTRICT JUDGE
plaintiff, a prisoner proceeding pro se, brought
this action alleging that her civil rights were violated. On
March 26, 2019, the Court dismissed this action pursuant to
the defendants' motion for summary judgment. (Docket #76
and #77). On April 4, 2019, the plaintiff filed a notice of
her intent to appeal that ruling. (Docket #78). On April 4,
2019, the plaintiff filed a motion to proceed on her appeal
without prepayment of the filing fee, or in forma
pauperis. (Docket #80).
the Prison Litigation Reform Act (“PLRA”), a
prisoner must pay the applicable filing fees in full for a
civil action. 28 U.S.C. § 1915(b). If a prisoner does
not have the money to pay the $505.00 filing fee in advance
for an appeal, he or she can request leave to proceed in
forma pauperis. To proceed with an action or appeal
in forma pauperis, the prisoner must complete a
petition and affidavit to proceed in forma pauperis
and return it to the court along with a certified copy of the
prisoner's trust account statement showing transactions
for the prior six months. 28 U.S.C. § 1915(a)(2). The
court must assess an initial filing fee (“IPFF”)
of twenty percent of the average monthly deposits to the
prisoner's prison account or average monthly balance in
the prisoner'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 IPFF is paid, the prisoner must make monthly payments of
twenty percent of the preceding month's income until the
filing fee is paid in full. 28 U.S.C. § 1915(b)(2). The
agency which has custody of the prisoner will collect the
money and send payments to the court. No. payment is required
from the agency in months when the prisoner's preceding
month's income is $10.00 or less. Id.
plaintiff may not proceed without prepayment of the filing
fee on appeal, though, 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 the plaintiff
takes the 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); see
also 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. This is the case when a
reasonable person could suppose the issue to have some legal
case, the plaintiff's appeal is not taken in good faith,
and therefore her motion to proceed in forma
pauperis must be denied. The plaintiff offers no grounds
for appeal in her notice of appeal or in her instant motion,
other than to say she is appealing the Court's
“entire judgment and order.” See (Docket
#78 at 1). She does not point to any specific error of law or
fact that she believes the Court made in dismissing her case.
No. reasonable person could suppose that the instant appeal
has merit without knowing what is being appealed or why.
the Court certifies that the appeal is not taken in good
faith, the Court provides the following information to the
plaintiff regarding proceedings before the Seventh Circuit.
The plaintiff will not be able to proceed on appeal without
paying the filing fee, unless the court of appeals gives her
permission to do so. The plaintiff has 30 days from the date
of this order to request that the Seventh Circuit review the
Court's denial of her motion for leave to appeal without
prepayment of the filing fee on appeal. Fed. R. App. P. 24.
If the plaintiff requests review by the Seventh Circuit, she
must include an affidavit and statement of issues she intends
to present on appeal, pursuant to Fed. R. App. P. 24(a). She
must also provide a copy of this order, in addition to the
notice of appeal she previously filed. If the plaintiff does
not request review of this order, the Seventh Circuit may
choose not to address the Court's denial of her motion;
instead, it may require the plaintiff to pay the full filing
fee before it considers her case. Failure to pay a required
fee may result in dismissal of the appeal.
the plaintiff has also filed a motion requesting to proceed
on the original record without including an appendix. (Docket
#82). That request must be directed to the Seventh Circuit.
The motion filed in this Court will, therefore, be denied.
IT IS ORDERED that the plaintiff's
motion for leave to appeal without prepayment of the filing
fee (Docket #80) be and the same is hereby
IS FURTHER ORDERED that the plaintiff's motion
to proceed on the original record without an appendix (Docket
#82) be and the same is hereby DENIED; and
IS FURTHER ORDERED that that a copy of this order be
electronically provided to PLRA Attorney, United States Court
of Appeals for the Seventh Circuit, ...