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Gay v. Hobart

May 23, 2006


The opinion of the court was delivered by: Harold A. Baker United States District Judge


This cause is before the court for consideration of the plaintiff's motion to proceed informa pauperis on appeal. [d/e 128]


Under 28 U.S.C. § 1915(a)(3), the district court is required to determine if the plaintiff's appeal is taken in good faith. "Good faith" within the meaning of § 1915(a)(3) is not about the plaintiff's sincerity in requesting appellate review. Rather, an appeal taken in "good faith" is an appeal that, objectively considered, raises non-frivolous colorable issues. See Cruz v. Hauck, 404 U.S. 59, 62 (1971); see also Coppedge v. United States, 369 U.S. 438, 445 (1962). See also Lee v Clinton, 209 F.3d 1025 (7th Cir. 2000).

On January 20, 2006, this court indicated that it doubted whether plaintiff's appeal was taken in good faith, and directed the plaintiff to submit a brief stating his grounds for appeal to assist the court in determining the issue. see Celske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999). The plaintiff has now submitted a brief which the court will consider.

On November 3, 2004, the court held a final pretrial hearing in this case and determined that the jury trial should be by video conferencing after considering evidence of the plaintiff's long history of violence and aggressive behavior. See January 10, 2004 Court Order. The court instructed the parties to provide copies of their trial exhibits to the clerk of the court on or before December 27, 2004.

On December 29, 2004, the clerk of the court received a letter from the plaintiff stating that correctional officials were refusing to copy his exhibits for trial and that he was "placed on suicide watch" after he cut himself. (Plain Ltr, p. 1). The plaintiff asked the court to issue an order directing correctional officials to copy his documents so he could be prepared for trial.

The court instructed the clerk of the court to contact the Department of Corrections and attempt to obtain copies of his documents in time for the jury trial. The Department of Corrections informed the clerk of the court that the plaintiff was not in fact on suicide watch. The plaintiff had injured his arm, but the injury was not perceived as life threatening.*fn1 In addition, Department of Corrections Official stated that the plaintiff had not made proper requests for his documents to be copied.

The plaintiff did make at least three requests for his documents to be copied which were each denied prior to December 29, 2004. However, the plaintiff admitted he had numerous legal documents and he had refused to provide a copy of the pretrial order identifying his trial exhibits. The court notes that the plaintiff is an experienced litigator and is well aware of the procedures that must be filed in order to obtain copies of documents. ( See Gay v. Spaulding, 01-1070 and Gay v. Salzman, 01-1209 in the Central District of Illinois; Gay v Zielke, 01-50448 and Gay v. Wiegand, 04-50418 in the Northern District of Illinois; and Gay v. Lohman, 96-962, Gay v. Potts, 99-367, and Gay v. Welbourne, 00-29 in the Southern District of Illinois).

After the plaintiff sent his letter to the court, a paralegal was again sent to the plaintiff's cell in an effort to obtain the documents that needed to be copied for trial. However, the plaintiff refused to cooperate and became verbally abusive. The court took judicial notice of two disciplinary reports concerning the plaintiff's conduct and the plaintiff does not deny his action toward the paralegal. See January 4, 2005 Court Order, attachments.

On the day of the trial, the court asked the plaintiff is he was prepared to proceed. The plaintiff stated that he was not because he did not have copies of his trial exhibits. The court found that the plaintiff's own misconduct had lead to a failure to comply with the court's order and a failure to obtain copies of his exhibits for trial. The court found that given the plaintiff's litigation experience, he had "willfully failed" to make the proper requests to have his documents copied. January 4, 2005 Court Order, p.3. "Given the plaintiff's long history of physical attacks on correctional staff and his increasingly hostile and threatening conduct, the court will not order correctional officers to make further attempts to obtain the documents from the plaintiff." January 4, 2005 Court Order, p. 3. The plaintiff's case was dismissed.


The plaintiff first states that he should have been allowed to appear in person for his jury trial. Since the case was dismissed due to the plaintiff's conduct, the case never proceed to trial. Nonetheless, the court notes that a prisoner-plaintiff does not have a constitutional right to be physically present during a civil trial, even if the plaintiff initiated the lawsuit. Stone v. Morris, 546 F.2d 730, 735 (7th Cir. 1976). The court "must weigh the interest of the plaintiff in presenting his testimony in person, against the interest of the state in maintaining the confinement of the plaintiff-prisoner." Id.

The court considered these factors during a January 30, 2004, hearing in which the court heard testimony from the supervisor of the Dixon Correctional Center Psychiatric Unit, Mary Henry. Henry testified that the plaintiff had in excess of 137 assaults, mainly against correctional staff. Eight of those assaults resulted in criminal convictions for Aggravated Battery. When the plaintiff was allowed to attend a court hearing, the plaintiff assaulted a witness. In addition, ...

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