United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
January 15, 2019, the court issued a screening order finding
that plaintiff Victor Robert Brown had failed to state a
claim and dismissing this action. (ECF No. 18.) The court
subsequently denied Brown's motion to alter its judgment
and his motion to amend his complaint. (ECF No. 23.) Brown
filed a notice of appeal on March 7, 2019. (ECF No. 24.) He
has also filed with this court a motion requesting leave to
proceed without prepaying the filing fee on appeal (ECF No.
31) and asking the court to order Green Bay Correctional
Institution (GBCI) to provide the court with his trust
account statements to support his motion (ECF No. 29).
the Prison Litigation Reform Act, a prisoner must pay the
applicable filing fee 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 for an appeal, he can request leave to
proceed without paying the filing fee. To proceed with an
action or appeal without paying the filing fee, the prisoner
must complete a petition and affidavit seeking such leave 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). If the
court concludes that the prisoner plaintiff cannot prepay the
full filing fee, it must then assess an initial partial
filing fee of twenty percent of (a) the average monthly
deposits to plaintiff's prison account, or (b) the
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. §
the initial partial filing fee 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 having custody of the
prisoner will forward payments from the prisoner's
account to the clerk of the court each time the amount in the
account exceeds $10.00. Id. 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 not taken in good faith,
or the prisoner has three strikes. See 28 U.S.C.
§§ 1915(a)(2)-(3), (g).
docket shows that Brown's trust account statements were
filed on March 25, 2019. (ECF No. 28.) As a result, the court
will deny his request to order GBCI to again provide the
court with the statements. Also, the court finds Brown has
established that he is indigent and that he has not accrued
three strikes. Fed. R. App. P. 24(a). See also, Celske v.
Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (“. . .
a plaintiff who . . . was allowed to proceed in forma
pauperis in the district court retains his IFP status in the
court of appeals unless there is a certification of bad
faith.”). That leaves only the question of whether he
filed his appeal in good faith.
district court should not apply an inappropriately high
standard when making its good faith determination. Pate
v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998). An appeal
is taken in “good faith” if it seeks review of
any issue that is not frivolous, meaning 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). On the other hand, an appeal based on a frivolous
claim-that is, a claim that no reasonable person could
suppose has any merit-is one taken in bad faith. Lee v.
Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000).
court does not find that Brown's appeal is taken in bad
faith. Therefore, it will grant his motion for leave to
proceed without prepaying the filing fee for his appeal.
Brown will be responsible for paying the filing fee pursuant
to 28 U.S.C. § 1915(b)(2). Newlin v. Helman,
123 F.3d 429, 434 (7th Cir. 1997), rev'd on other
grounds by, Walker v. O'Brien, 216 F.3d 626 (7th
Cir. 2000) and Lee v. Clinton, 209 F.3d 1025 (7th
IS THEREFORE ORDERED that Brown's motion for
order (ECF No. 29) is DENIED.
IS FURTHER ORDERED that Brown's motion for leave
to proceed without prepaying the filing fee (ECF. No. 31) is
IS FURTHER ORDERED that the agency having custody of
Brown shall collect from his institution trust account the
$505.00 filing fee by collecting monthly payments from his
prison trust account in an amount equal to 20% of the
preceding month's income credited to the prisoner's
trust account and forwarding payments to the Clerk of Court
each time the amount in the account exceeds $10 in accordance
with 28 U.S.C. § 1915(b)(2). The payments shall be
clearly identified by the case name and number assigned to
this action. If Brown is transferred to another county,
state, or federal institution, the transferring institution
shall forward a copy of this Order along with Brown's
remaining balance to the receiving institution.
IS ALSO ORDERED that a copy of this order be sent to
the officer in charge of the agency where Brown is confined.
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. ...