United States District Court, S.D. Illinois
WILLIE J. BOOKER, Plaintiff/Appellant,
BRYAN GLECKLER, et al., Defendants/Appellees.
MEMORANDUM AND ORDER
matter is before the Court on Plaintiff Willie J.
Booker's Motion for Leave to Appeal in forma
pauperis (“IFP”) (Doc. 130). Plaintiff, an
inmate incarcerated in the Illinois Department of
Corrections, filed the underlying action pursuant to 42
U.S.C. § 1983, alleging constitutional and statutory
violations, including a “failure to protect”
claim. (Docs. 1, 4). Plaintiff also alleged that he was in
imminent danger of serious physical injury. (Id.).
The Court issued an Order dismissing the case with prejudice
for failure to prosecute and failure to obey the Court's
Order regarding payment of filing fees (Doc. 123). Plaintiff
filed a Notice of Appeal (Doc. 125) of the dismissal and a
prior Order revoking his IFP status (Doc. 114). He now seeks
to appeal IFP.
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 and 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)); and Walker v. O'Brien, 216
F.3d 626, 632 (7th Cir. 2000). A court's discretion in
granting or denying IFP status is further limited by the
“three strikes rule.” In other words, prisoner
litigant may not “appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.” 28 U.S.C. §
issue here, with respect to both the underlying case and IFP
status on appeal, is the “imminent danger of serious
physical harm” exception to the three-strikes rule as
there is no dispute that Plaintiff has three strikes against
him. See Booker v. City of Rockford, No. 03-cv-50066
(N.D. Ill., dismissed March 27, 2003); Booker v.
Mitchell, No. 10-cv-0312 (S.D. Ill., dismissed November
5, 2010); Booker v. O'Conner, No. 15-cv-50052
(N.D. Ill., dismissed April 14, 2015). Plaintiff was
originally granted IFP status upon preliminary review of his
Complaint. (Doc. 18). Defendants subsequently filed a motion
to revoke Plaintiff's IFP status and Magistrate Judge
Reona M. Daly held an hearing to determine whether the
imminent danger exception applied. (Docs. 70, 102). Judge
Daly issued a Report and Recommendation in which she found
that Plaintiff's claims of imminent danger were not
credible. (Doc. 108).
Court adopted Judge Daly's findings and entered an Order
revoking Plaintiff's IFP status on August 4, 2017. (Doc.
114). Plaintiff was advised that he had 60 days from the date
of the Order to pay the full filing fee or the case would be
dismissed with prejudice. (Id.). Payment was
therefore due on October 3, 2017. As no filing fee was
received from Plaintiff by the due date, the Court issued an
Order for Plaintiff to show cause why the case should not be
dismissed. (Doc. 120). Plaintiff's response was not
adequate. He essentially reasserted the previously rejected
claims, and the case was therefore dismissed for failure to
prosecute and failure to obey the Court's order regarding
payment of the filing fee.
appeal, Plaintiff seeks IFP status and again asserts that the
three-strikes rule should not apply because he is in imminent
danger of physical harm. The vast majority of Plaintiff's
19-page motion is a detailed repetition of the assertions and
allegations previously made and rejected by the Magistrate
Judge and this Court.
motion fails to qualify him for relief from the three-strikes
rule, and fails to meet the broader standard of
non-frivolity. Plaintiff's representations regarding
imminent harm are no more credible than they were when he
made them to Judge Daly. The Court therefore finds that his
appeal proceeding is not entitled to exemption from the
Plaintiff's appeal is frivolous. Plaintiff offers no new
or compelling arguments in his Notice of Appeal or any other
appellate filing thus far. His Notice of Appeal merely states
that he is appealing the Court's Order dismissing the
case and the Order revoking his IFP status. He provides no
specific explanation as to how the Court allegedly erred. Nor
does he assert any error in the Court's Order dismissing
the case for failure to pay the filing fee, other than that
his IFP status should not have been revoked in the first
Plaintiff asserts no legal points that are reasonably
arguable on their merits, his appeal is both frivolous and
barred by the three-strikes rule. Accordingly,
Plaintiff's Motion for Leave to Appeal in forma
pauperis (Doc. 130) is DENIED.
IS SO ORDERED.