Name of Assigned Judge Matthew F. Kennelly Sitting Judge if Other or Magistrate Judge than Assigned Judge
Plaintiff's motion for leave to appeal in forma pauperis [#14] is denied. The Court certifies that the appeal is not taken in good faith and orders plaintiff to pay the appellate fees of $455 within fourteen days or the Court of Appeals may dismiss his appeal for want of prosecution. The Clerk is directed to send a copy of this order to the PLRA Attorney, U.S. Court of Appeals for the Seventh Circuit.
O [For further details see text below.]
Docketing to mail notices.
Plaintiff has filed a notice of appeal and seeks leave to proceed in forma pauperis. It is unclear from Plaintiff's notice of appeal what it is he is appealing, because the action referenced in the notice of appeal is action taken in a different case: Ellison v. Illinois Department of Corrections, et al. Case No. 10 C 5772 (N.D. Ill.) However, the most recent order entered in this case denying plaintiff relief was entered on March 23, 2011, when the Court declined to re-open plaintiff's case. Accordingly, the Court construes plaintiff's notice of appeal to be from that order. The Court also notes that plaintiff has submitted along with his notice of appeal yet another proposed amended complaint, without a motion for leave to file, and not in compliance with the pleading requirements laid out in FED. R. CIV. P. 8(a), in spite of the Court's prior orders. For the reasons stated in the March 23, 2011 order, the Court finds that this action does not raise a substantial issue meriting appellate review. As Plaintiff has raised none in his motion for leave to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that the appeal is not in good faith and that no appeal should be taken. When a suit is found to be frivolous, an ensuing appeal generally cannot be "in good faith" under § 1915(a)(3). Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000).
Under the rules of the U.S. Court of Appeals for the Seventh Circuit Court, if the district court certifies that an appeal is not taken in good faith, the appellant cannot prosecute the appeal in forma pauperis but rather must pay the appellate fees in full for the appeal to go forward. Consequently, plaintiff must pay the full $455 within fourteen days or the Court of Appeals may dismiss his appeal for want of prosecution. See Evans v. Illinois Dept. of Corrections, 150 F.3d 810, 812 (7th Cir. 1998). If plaintiff wishes to contest this Court's finding that the appeal is not taken in good faith, he must file a motion with the Court of Appeals seeking review of this Court's certification within thirty days of service of this order. See Fed. R. App. P. 24(a)(5).
In sum, plaintiff's motion for leave to appeal in forma pauperis is denied. Plaintiff is ordered to remit to the Clerk of the Court the $455 appellate fee within fourteen days of the date of this order. If plaintiff fails to comply with this order, the Court of Appeals may dismiss his appeal. Plaintiff is responsible for ensuring payment of the filing fees as directed by this order, and should ensure that the institution having custody of him transmits the necessary funds. Nonpayment for any reason other than destitution shall be construed as a voluntary relinquishment of the right to file future suits in forma pauperis. The obligation to ensure full payment of the filing fees imposed by this order shall not be relieved by release or transfer to another prison. Plaintiff is under a continuing obligation to inform the Clerk of this Court in writing of any change of address within seven days.
Payment shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor. Payment should clearly identify plaintiff's name, as well as the district court and appellate court case numbers assigned to this action.
The Clerk is directed to send a copy of this order to the PLRA Attorney, United States Court of Appeals for the Seventh Circuit.
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