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Allison v. Department of Transportation

United States District Court, Northern District of Illinois


November 3, 2011

ALLISON
v.
DEPARTMENT OF TRANSPORTATION

The opinion of the court was delivered by: Charles P. Kocoras U.S. District Judge

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court certifies that Allison's appeal is not taken in good faith and thus denies his motion (Doc [49]) to appeal in forma pauperis. Allison must either pay the appellate filing and docketing fees totaling $455.00 to the Clerk of the Court for this district, or reapply to the Seventh Circuit Court of Appeals within thirty days for leave to appeal in forma pauperis. If Allison chooses to pursue the latter course, he should conform his application to the requirements of Federal Rule of Appellate Procedure 24(a)(5). The Court directs the Clerk of the U.S. District Court for the Northern District of Illinois to send notice of this Order to the parties and the Clerk of the U.S. Court of Appeals for the Seventh Circuit in accordance with Federal Rule of Appellate Procedure 24(a)(4).

O[ For further details see text below.] Docketing to mail notices.

ORDER

On May 24, 2011, Plaintiff Dexter Allison ("Allison") filed a complaint in this Court alleging claims of disability and race discrimination and a violation of the Family Medical Leave Act ("FMLA") against the Department of Transportation (the "Department"). On September 15, 2011, this Court dismissed Allison's complaint as untimely. Allison now seeks permission to appeal that decision in forma pauperis, without prepayment of fees or submission of a bond.

A litigant may pursue an appeal in forma pauperis if the litigant is unable to pay the costs of commencing the appeal. 28 U.S.C. § 1915(a). However, permission to appeal in forma pauperis will be denied if the appeal is not taken in good faith. Fed. R. App. P. 24(a)(3)(A); 28 U.S.C. §1915(a)(3). "Good faith" means that "a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000) (citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)).

Allison's financial affidavit indicates that he is unemployed and receives $200 per month from public assistance and $100 from the U.S. Department of Veterans Affairs. The only asset he owns is a 16 year-old automobile, and his monthly expenses total $300. Based on this information, the Court finds that Allison is unable to pay the appellate filing and docketing fees and must now determine whether there is a good-faith basis for his appeal.

To aid in this determination, the Court has reviewed the existing record, including the arguments Allison presented in response to the Department's motion to dismiss. The facts unambiguously demonstrate that Allison missed the deadlines for bringing his discrimination and FMLA claims. Furthermore, Allison has failed to provide evidence that would entitle him to equitable tolling of the timing requirements. For these reasons, which are discussed in greater detail in the Court's Memorandum Opinion, dated September 15, 2011, no reasonable jurist could find merit in Allison's appeal.

In light of the foregoing, the Court certifies that Allison's appeal is not taken in good faith and thus denies his motion to appeal in forma pauperis. Allison must either pay the appellate filing and docketing fees totaling $455.00 to the Clerk of the Court for this district, or reapply to the Seventh Circuit Court of Appeals within thirty days for leave to appeal in forma pauperis. If Allison chooses to pursue the latter course, he should conform his application to the requirements of Federal Rule of Appellate Procedure 24(a)(5).

The Court directs the Clerk of the U.S. District Court for the Northern District of Illinois to send notice of this Order to the parties and the Clerk of the U.S. Court of Appeals for the Seventh Circuit in accordance with Federal Rule of Appellate Procedure 24(a)(4).

Date: November 3, 2011

20111103

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