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Caldwell v. Ewing

April 30, 2007

LINDA ANN CALDWELL, PLAINTIFF,
v.
CHERYL EWING, 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 motion to proceed in forma pauperis on appeal [d/e 70] and the defendants' motion to strike the plaintiff's brief in support of the motion. [d/e 73]

Under 28 U.S.C. § 1915(a)(3), the 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).

On June 21, 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 her 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 for the court's consideration.

The defendants have filed a motion asking the court to strike the brief. The defendants state that the brief is addressed to the United States Court of Appeals and does not respond to the court's order asking for the grounds for appeal. The plaintiff has filed a 50 page brief with hundreds of pages of documents. It is clear the plaintiff has addressed issues beyond her grounds for appealing the court's order granting summary judgment. Nonetheless, the plaintiff is proceeding pro se. The court will consider the relevant portions of the plaintiff's brief. Therefore, the defendants motion to strike the brief is denied. [d/e 73]

The plaintiff is appealing the court's March 24, 2006 Court Order granting defendants' motion for summary judgment. The plaintiff had the following surviving claims:

1) Defendants Ewing, Lovell, Cahill-Masching, Snyder and Ford violated the plaintiff's First Amendment rights by denying her only avenue of religious study.

2) Defendants Ewing, Lovell, Cahill-Masching, Snyder and Ford violated the plaintiff's First Amendment, Equal Protection and Due Process rights when the plaintiff was denied various African American magazines without any explanation.

3) Defendants Ewing, Lovell, Cahill-Masching, Snyder and Ford retaliated against the plaintiff for her grievances and legal activities by denying "legal" status to her ACLU and NAACP letters.

4) Defendants Kuhse, Johnson, Ewing, Lovell, Cahill-Masching, Snyder and Ford violated the plaintiff's First Amendment rights by either opening privileged or legal mail outside her presence or causing lengthy delays in receiving mail.

5) Defendants Ewing, Lovell, Cahill-Masching, Snyder and Ford violated the plaintiff's First Amendment right to meaningful access to the courts when they delayed legal mail and the plaintiff missed court deadlines.

The court found that the plaintiff had failed to demonstrate that their was any genuine issue as to any material fact and the defendants were entitled to judgment as a matter of law. See March 24, 2006 Court Order.

The plaintiff devotes much of her brief to arguing that the court should have dismissed certain claims and defendants on March 17, 2005. However, the plaintiff's notice of appeal clearly states she is appealing the court's March 24, 2006 decision to deny the summary judgment motion.

As for the motion for summary judgment, the plaintiff repeats many of her earlier arguments. For instance, the plaintiff again argues that the defendants violated her First Amendment right to practice her religion by confiscating self-addressed envelopes. The plaintiff has simply failed to demonstrate that the envelopes were essential to the practice of her ...


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