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Flournoy v. Schomig
January 25, 2010
JOHNNIE FLOURNOY, PLAINTIFF,
JAMES M. SCHOMIG, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Harold A. Baker United States District Judge
The plaintiff seeks leave to proceed on appeal in forma pauperis . 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). The court cannot find a good faith basis for his appeal. See Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000), where the court held that an appeal from a dismissal for frivolousness cannot be in good faith. For the reasons stated in its October 20, 2009 order, the court finds that this action does not raise a substantial issue meriting relief from judgment.
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 after receiving the notice of appeal doubts that it is in good faith should, before denying the appellant's in forma pauperis status, give him an opportunity to submit a statement of his grounds for appealing. See Celske v. Edwards, 164 F.3d 396 (7th Cir. 1999). A plaintiff that identifies issues that are debatable among jurists, or that could be resolved in a different manner, or that are sufficient to deserve encouragement to proceed further demonstrate a good faith basis for an appeal. Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998).
1. The plaintiff is directed to submit a brief informing the court of his grounds for appealing within fourteen (14) 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. The defendants shall file a response within fourteen (14) days thereafter.
2. The plaintiff's motion for extension of time to file appellant's brief until a ruling is made on his motion to proceed in forma pauperis  is rendered moot.
3. The clerk of the court is directed to forward a copy of this order to the United States Court of Appeals for the Seventh Circuit.
Enter this 25th day of January 2010.
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