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Hall v. Sutton

United States District Court, S.D. Illinois

February 26, 2014

LORENZO HALL, #B-64594, Plaintiff,
v.
CHAPLAIN SUTTON and DIETARY MANAGER BRYANT, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on plaintiff Lorenzo Hall's motion for appointment of counsel on appeal (Doc. 69) and motion for leave to proceed in forma pauperis (Doc. 70).

This Court does not have the authority to appoint counsel on appeal; only the Court of Appeals can make such appointments once a notice of appeal has been filed. Accordingly, the Court hereby DIRECTS the Clerk of Court to TRANSFER the pending motion for appointment of counsel (Doc. 69) to the Court of Appeals for the Seventh Circuit.

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).

The Court believes Hall's appeal is not frivolous. However, it is unable to assess his indigency or determine the appropriate initial partial filing fee for his appeal without more information. Pursuant to 28 U.S.C. § 1915(b)(1), the Court must review the prisoner trust fund account statement for the 6 month period immediately preceding the filing of the notice of appeal. Accordingly, Plaintiff shall provide the Clerk of Court with a copy of his trust fund account statement (or institutional equivalent) for the period July 1, 2013 through January 22, 2014 no later than March 26, 2014. The Clerk is DIRECTED to mail a copy of this Order and the trust fund account certification form to the Trust Fund Officer at Pinckneyville Correctional Center. The Court RESERVES RULING on Hall's motion for leave to proceed on appeal in forma pauperis until it receives the requested information.

The Court DIRECTS the Clerk of Court to send a copy of this order to the Court of Appeals in connection with Appeal No. 14-1246.

IT IS SO ORDERED.


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