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McGhee v. Firel

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


May 7, 2007

FRANK MCGHEE, PLAINTIFF,
v.
JOYCE FIREL, DEFENDANT.

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 for leave to proceed in forma pauperis on appeal [d/e 9] and motion for appointment of counsel on appeal [d/e 10] The plaintiff's motion for appointment of counsel is denied as this court does not have jurisdiction over plaintiff's appeal.

Under 28 U.S.C. § 1915(a)(3), the court is required to determine if the plaintiff's appeal is taken in good faith before the court can determine in forma pauperis status. "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).

The plaintiff is appealing the court's February 20, 2007 Court Order dismissing this case for failure to state a claim upon which relief could be granted. See February 20, 2007 Court Order. The court has not been able to find any colorable constitutional claims in the complaint, and the plaintiff has failed to point to any mistake of law or fact or new evidence.

However, the United States Court of Appeals for the Seventh Circuit has ruled that where the appellant was authorized to proceed in forma pauperis in the district court, a district judge who doubts that the appeal is in good faith should give the plaintiff an opportunity to submit a statement of his grounds for appealing. See Celske v. Edwards, 164 F.3d 396 (7th Cir. 1999).

IT IS THEREFORE ORDERED that:

1) Plaintiff's motion for appointment of counsel on appeal is denied. [d/e 10]

2) The plaintiff must submit a brief informing the court of his grounds for appealing within twenty-one (21) days from the date of this order. If the plaintiff fails to respond within the time specified, the court will make an assessment of the issue of good faith without further consideration. Defendants may respond to plaintiff's brief within fourteen (14) days of service of said brief.

Entered this 7th day of May, 2007.

20070507

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