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Winston v. Brandy CMT

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


April 4, 2006

ANDRE WINSTON, PLAINTIFF,
v.
BRANDY CMT, ET AL., DEFENDANTS

The opinion of the court was delivered by: Harold A. Baker U. S. District Judge

ORDER

The plaintiff, a state prisoner, has brought this civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff seeks leave to proceed on appeal in forma pauperis, d/e 142. A review of the record indicates that the plaintiff has filed an impermissible interlocutory appeal. In its March 20, 2006 orders, d/e's 137, 138 and 139, this court considered motions for summary judgment. This court granted the defendants' motion for summary judgment and rendered the plaintiff's pending summary judgment motion as moot. However, this case has not been terminated as there are two remaining defendants in this lawsuit, Cation and Shaw. On April 3, 2006, the plaintiff filed a notice of appeal. The plaintiff has not motioned the court for leave to file an interlocutory appeal. Further, the plaintiff has stated no basis for allowing an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The court does not feel that an immediate appeal would materially advance the ultimate termination of the litigation.

The court cannot find a good faith basis for the plaintiff's impermissible interlocutory appeal. Accordingly, the court denies the plaintiff's motion for leave to proceed in forma pauperis and the court certifies that the plaintiff's appeal was not filed in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Newlin v. Helman, 123 F.3d 429, 433 (7th Cir. 1997). The Seventh Circuit has determined that if the district court certifies that an appeal is not taken in good faith, the appellant cannot prosecute the appeal in forma pauperis, but must pay the appellate fees of $250.00 within 14 days. Id. at 434. If the plaintiff wishes to contest this court's findings, that the appeal is not taken in good faith, he must file a motion with the Court of Appeals seeking review of this court's certification within 30 days after service of this order. See Fed.R.App.P. 24(a).

It is therefore ordered:

1. The plaintiff's motion for leave to appeal in forma pauperis is denied, d/e 142.

2. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that the appeal is not in good faith.

3. The plaintiff is directed to remit to the clerk of the court the $255.00 appellate fee within 14 days of the date of this order.

4. The clerk is directed to send a copy of this order to the United States Court of Appeals for The Seventh Circuit.

20060404

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