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Thomas v. Walker

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 16, 2007

OILY H. THOMAS, PETER GUZMAN, JAMES ARMSTRONG AND BRIAN SMITH, PLAINTIFFS,
v.
ROGER E. WALKER, JR., SALVADOR GODINEZ, SHELTON FRYE, RUANN TANNER AND OFFICER DELGADO, DEFENDANTS.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on plaintiff Oily Thomas's motion for leave to proceed on appeal in forma pauperis (Doc. 73).

A federal court may permit a party to proceed on appeal without full pre-payment of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). A frivolous appeal cannot be made in good faith. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967)); Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000).

With his petition for leave to appeal in forma pauperis, an applicant must include an affidavit setting forth his inability to pay or give security for the fees and costs he must pay, a claim of entitlement to redress, and the issues that the party intends to present on appeal. Fed. R. App. P. 24(a)(1). A prisoner must also include a certified copy of his trust fund account statement or institutional equivalent for the 6-month period immediately preceding the filing of the notice of appeal. 28 U.S.C. § 1915(a)(2). Without a statement of issues the applicant intends to pursue on appeal, the Court cannot determine whether an appeal would be frivolous. Thomas has included none of these things in his motion.

IT IS THEREFORE ORDERED that plaintiff Thomas shall submit on or before December 14, 2007, a certified copy of his prison trust fund account statement for the six-month period immediately preceding the filing of the notice of appeal as well as a claim of entitlement to redress and the issues that he intends to present on appeal. Plaintiff is ADVISED that in the event he has been transferred among institutions during this six-month period, it is plaintiff's responsibility to obtain a copy of his prison trust account statement from each such facility and to forward it to the Court. The Court RESERVES RULING on the motion for leave to proceed in forma pauperis until December 14, 2007. Should Thomas fail to submit the required information, the Court may deny his motion.

IT IS SO ORDERED.

20071116

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