IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
July 23, 2012
JOSEPH DAVIS, PLAINTIFF,
DR. JILL WAHL, ET AL., DEFENDANT.
The opinion of the court was delivered by: J. Phil Gilbert District Judge
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Joseph Davis' Motion to Proceed on Appeal In Forma Pauperis (Doc. 72). For the following reasons, the Court denies Davis' motion.
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)(1) & (3); Fed. R. App. P. 24(a)(3)(A). 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).
Here, the Court has not entered judgment in this case. However, on May 4, 2012, Defendant Dr. Shepherd filed a motion for summary judgment wherein he alleges that Davis failed to exhaust his administrative remedies. (Doc. 64 & 66). Then, on May 31, 2012, Davis filed his notice of appeal (Doc. 67) wherein he refers to grievances he filed against Dr. Shepherd. The Court infers that Davis intended to respond to Dr. Shepherd's motion for summary judgment. Thus, because there is yet to be an issue that Davis can appeal, Davis' notice of appeal is frivolous.
Accordingly, the Court DENIES Davis' Motion to Proceed on Appeal In Forma Pauperis (Doc. 72).
IT IS SO ORDERED.
J. Phil Gilbert
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