United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
19, 2019, the court issued an order granting summary judgment
for the defendant and dismissing the complaint. Dkt. No. 79.
The plaintiff filed a notice of appeal on August 5, 2019.
Dkt. No. 81. He has filed a motion for leave to proceed with
his appeal without prepaying the appellate filing fee. Dkt.
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 request
permission from the court to proceed without prepaying. For
the court to consider such a request, the prisoner must
complete a petition and affidavit and return it to the court,
along with a certified copy of his trust account statement
showing transactions for the six months preceding the filing
of the notice of appeal. 28 U.S.C. §1915(a)(2). The
court must assess an initial partial filing fee of twenty
percent 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 prisoner pays the initial fee, he must make monthly
payments of twenty percent of the preceding month's
income until he pays the filing fee in full. 28 U.S.C.
§1915(b)(2). The agency that has custody of the prisoner
will collect the money and send payments to the court.
are three grounds for denying a prisoner appellant's
request to proceed without prepaying the filing fee: the
prisoner has not shown that he is indigent, the prisoner
filed the appeal in bad faith, or the prisoner has three
strikes. See 28 U.S.C. §§1915(a)(2)-(3),
(g). The court finds that the plaintiff has established that
he is indigent and that he has not accrued three strikes.
That leaves only the question of whether the plaintiff filed
this appeal in good faith.
court allowed a party to proceed without prepaying the filing
fee in the district court, that party may proceed on appeal
without prepaying the filing fee without further
authorization, unless the district court certifies that the
appeal is not taken in good faith or determines that the
party is otherwise not entitled to proceed without prepaying
the fee. 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
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). 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).
is no indication that the plaintiff is not taking this appeal
in good faith. The court will grant his motion to proceed on
appeal without prepaying the filing fee.
plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing of his notice of appeal. A review of
this information reveals that the plaintiff must pay an
initial partial filing fee of $1.71, as well as additional
payments under 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, 209 F.3d 1025.
court GRANTS the plaintiff's motion for
leave to proceed on appeal without prepaying the filing fee.
Dkt. No. 85.
court ORDERS that by November 8,
2019, the plaintiff shall forward to the Clerk of
Court the sum of $1.71 as the initial
partial filing fee for this appeal. If the clerk does not
receive that amount by the end of the day on November 8,
2019, the court of appeals may dismiss the appeal. The
plaintiff shall identify the payment by the case name and
court ORDERS that after the appellant has
paid the initial partial filing fee, the agency that has
custody of the prisoner shall collect from his institution
trust account the $503.29 balance of the filing fee by
collecting monthly payments from the plaintiffs 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 agency shall clearly
identify the payments by the case name and number. If the
plaintiff transfers to another institution-county, state or
federal-the transferring institution shall forward a copy of
this order, along with the plaintiff's remaining balance,
to the receiving institution.
court will send a copy of this order to New Lisbon
Correctional Institution, where the plaintiff is currently
housed, and will electronically provide a copy to the PLRA
Attorney, United States Court of Appeals for the Seventh