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Forsyth v. Jordan-Luster

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


May 25, 2006

ROBERT FORSYTH, PLAINTIFF,
v.
ADELLA JORDAN-LUSTER, ET AL., DEFENDANTS.

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

ORDER

This cause is before the court for consideration of the plaintiff's second motion for leave to appeal in forma pauperis [d/e 93] and motion for leave to file an amended notice of appeal. [d/e 97].

BACKGROUND

The efforts to appeal the final judgment in this case have a confused history. On September 21, 2004, the court granted the defendants' motion for summary judgment and judgment was entered for the defendants. On September 23, 2005, the court denied the plaintiff's motion for reconsideration of this decision.

On October 3, 2005, the plaintiff filed a notice of appeal and motion to proceed in forma pauperis on appeal. The notice of appeal stated that the plaintiff was appealing the final judgment entered on September 23, 2005.

On October 27, 2005, the court entered an order telling the plaintiff that he must file a brief stating his grounds for appeal. The plaintiff then filed a motion for an extension of time to file his brief and a motion for leave to appeal. The plaintiff had filed the same motion for leave to appeal with the Seventh Circuit Court of Appeals. The court granted the plaintiff's motion for an extension of time. The court denied the plaintiff's motion for leave to appeal, since he already had an appeal pending.

The plaintiff provided two briefs stating his grounds for appeal. See November 14, 2005 motion and January 13, 2006 Brief. The basis for both was that the district court erred when it granted summary judgment for the defendants on September 21, 2004. While the plaintiff's notice of appeal was not artfully stated, the pro se plaintiff clearly stated the basis for his appeal in his brief. Nonetheless, the court denied the plaintiff's motion for leave to proceed in forma pauperis on appeal on January 30, 2004 and gave the plaintiff fourteen days to pay the appellate fee.

On February 21, 2006, the Seventh Circuit Court of Appeals issued an order granting plaintiff's motion for an extension of time to pay the appellate filing fee. [d/e 89] No reason was stated for this extension and the plaintiff was informed that he must either pay the fees or file a renewed motion to proceed in forma pauperis. The plaintiff responded by filing another motion for leave to proceed in forma pauperis with a supporting memorandum.

On March 20, 2006, the Seventh Circuit Court of Appeals stated that the plaintiff must pay the appeal fee within fourteen days, or his appeal would be dismissed.

The plaintiff filed a motion for leave to file an amended notice of appeal. The plaintiff apparently believed the court did not consider his appeal of the order granting summary judgment.

On April 21, 2006, the Seventh Circuit Court of Appeals dismissed the plaintiff's appeal for failure to pay the filing fee.

MOTION FOR LEAVE TO FILE AN AMENDED NOTICE OF APPEAL

The plaintiff has no appeal pending, so his motion is moot. Nonetheless, the court notes that the court did consider the issues raised in the plaintiff's brief and did consider his appeal as an appeal of the order granting the summary judgment motion.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Again, the plaintiff does not have any appeal pending, so his motion is moot. The court notes that the plaintiff repeats that he is appealing the court's granting of the defendants' motion for summary judgment. One additional argument he proposes is that he should be entitled to punitive or nominal damages. The plaintiff failed to show that the defendants violated his constitutional rights, and therefore the court granted summary judgment. The plaintiff is not entitled to any damages.

IT IS THEREFORE ORDERED that:

1) The plaintiff's motion to file an amended notice of appeal is denied as repetitive and moot. [d/e 97].

2) The plaintiff's second motion for leave to proceed in forma pauperis on appeal is denied as repetitive and moot. [d/e 93]. There are no appeals pending in this case.

Enter this _________day of May, 2006.

20060525

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