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Green v. Hollingsworth

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 21, 2010

KEVIN GREEN, PETITIONER,
v.
LISA HOLLINGSWORTH, RESPONDENT.

The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner's motion to proceed in forma pauperis on appeal (Doc. 14). This habeas action, filed under 28 U.S.C. § 2241, previously was dismissed pursuant to 28 U.S.C. § 2254 Rule 4.*fn1 Implicit in such a dismissal is a finding that the petition for writ of habeas corpus is legally frivolous, Johnson v. Gramley, 929 F.2d 350, 351 (7th Cir. 1991), as that term is used in 28 U.S.C. § 1915(e)(2) -- i.e., that the petition "lacks an arguable basis either in fact or law," Neitzke v. Williams, 490 U.S. 319, 325 (1989). When the underlying district court action is frivolous, any appeal from its summary dismissal also is frivolous; accordingly, leave to proceed in forma pauperis on appeal (Doc. 14) is DENIED. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982). Plaintiff shall tender the appellate filing and docketing fee of $455 to the Clerk of Court in this District within FIFTEEN (15) DAYS of the date of entry of this Order, or he may reapply to the Seventh Circuit Court of Appeals for leave to proceed in forma pauperis on appeal.

The Court notes that because Petitioner is appealing the dismissal of his § 2241 petition, no certificate of appealability is necessary for Petitioner to perfect his appeal. FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c).

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge


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