United States District Court, S.D. Illinois
FIRAS M. AYOUBI, Plaintiff,
WEXFORD HEALTH SOURCES, INC., et al ., Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.
September 5, 2019, the undersigned adopted Magistrate Judge
Gilbert C. Sison's Report and Recommendation and denied
the Motion for Preliminary Injunction filed by Plaintiff
Firas M. Ayoubi (Doc. 108). On September 18, 2019, Ayoubi
filed a Notice of Appeal of the Court's September 5, 2019
Order (Doc. 113). He subsequently requested leave to appeal
in forma pauperis (Doc. 125), which the Court
granted (Docs. 129 and 129).
November 4, 2019, Ayoubi filed another Notice of Appeal (Doc.
132). In that Notice of Appeal, Ayoubi seeks to appeal Judge
Sison's October 24, 2019 order that denied Ayoubi's
motion to reinstate malpractice claims against Defendants
Butalid and Ritz (Doc. 126).
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). See
also Walker v. O'Brien, 216 F.3d 626, 630-31 (7th
Cir. 2009). An appeal is taken in good faith if it seeks
review of an issue that is not clearly frivolous, meaning
that a reasonable person could suppose it to have at least
some legal merit. Walker, 216 F.3d at 632 (citing
Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir.
2000)). The motion to proceed IFP must be supported by an
affidavit that shows the party's inability to pay or to
give security for fees and costs, claims an entitlement to
redress, and states the issues that the party intends to
present on appeal. See Fed. R. App. P. 24(a)(1).
extent that Ayoubi seeks to appeal Judge Sison's October
24, 2019 order denying Ayoubi's motion to reinstate
malpractice counts against Defendants Butalid and Ritz, this
decision is not appropriate for immediate appeal. It is not a
final decision appealable under 28 U.S.C. § 1291, and it
is not an appropriate order for appeal under 28 U.S.C. §
1292(b). Case law suggests that the appropriate
course to take when an appeal is taken from an unappealable
non-final order is to deny leave to proceed in forma
pauperis and to certify that the appeal is not taken in
good faith. See Westefer v. Snyder, Case No.
00-cv-162-GPM, 2010 WL 381442, at *1 (S.D. Ill. Jan. 27,
2010); Bernegger v. Banks, No. 08-C-156, 2008 WL
4861912, at *2 (E.D. Wis. Nov. 3, 2008); Bruette v.
Adler, No. 08-cv-28-bbc, 2008 WL 3842931, at *1 (W.D.
Wis. Aug. 15, 2008); Warren v. Berge, No.
02-C-0093-C, 2002 WL 32348352, at *1-2 (W.D. Wis. Dec. 26,
these reasons, the Court cannot say Ayoubi's request for
leave to appeal in forma pauperis is in good faith.
Because the appeal is determined to be in bad faith,
Ayoubi's motion to proceed IFP on appeal (Doc. 145) is
denied pursuant to 28 U.S.C. § 1915(a)(3). Ayoubi has
thirty days from the date of this Order to reapply to the
Seventh Circuit Court of Appeals for leave to proceed in
forma pauperis on appeal. Fed. R. App. P.
Court also notes that Ayoubi has filed a “Motion to
Alter or Amend Order Granting Leave to Proceed on Appeal in
Forma Pauperis” (Doc. 147). This motion is directed at
the Court's previous order allowing Ayoubi to proceed
in forma pauperis on appeal regarding the denial of
his request for a preliminary injunction. In this motion,
Ayoubi asks the Court to conduct an inquiry as to whether he
met the imminent danger requirement of the Prison Litigation
Reform Act to proceed on appeal in light of his three
strikes. He further objects to the Court's assessment of
the initial payment of $485.55. He asks the Court to amend
the original Order to allow him to proceed under the imminent
danger exception and to direct the Clerk to re-calculate the
initial payment by using the method set forth by the PLRA.
Ayoubi's first request, the Court was not originally
aware, but has now confirmed that Ayoubi has at least three
strikes, some of which were assessed in the Northern District
of Illinois. Pursuant to Section 1915(g), once a third strike
is recorded against an inmate, he may not seek pauper status
in any future civil action or appeal “unless [he] is
under imminent danger of serious physical injury.” In
general, courts “deny leave to proceed IFP when a
prisoner's claims of imminent danger are conclusory or
ridiculous.” Ciarpaglini v. Salini, 352 F.3d
328, 331 (7th Cir. 2003). Ayoubi's allegation that he
suffers from a nervous tic that causes him pain and that he
is presently being denied medical care for a potentially
serious medical condition permits him to invoke the
“imminent danger” exception. See Dye v.
Bartow, No. 13-CV-284-BBC, 2013 WL 5295690, at *2 (W.D.
Wis. Sept. 19, 2013) (noting that a low bar is required to
satisfy the imminent danger standard); see also
Ciarpaglini, 352 F.3d at 331 (It is improper to adopt a
“complicated set of rules about what conditions are
serious enough” to constitute “serious physical
injury” under 28 U.S.C. § 1915(g)).
Ayoubi's second request, the Court did calculate the
initial partial filing fee by using the method set forth by
statute. Moreover, the fact that Ayoubi qualifies under the
imminent danger exception does not change this calculation.
1915(b)(1) provides that the initial partial filing fee
should be twenty percent of the greater of: (1) the average
monthly deposits to the prisoner's trust fund account; or
(2) the average monthly balance in the prisoner's trust
fund account for the six-month period immediately preceding
the filing of the suit. See 28 U.S.C. §
1915(b)(1)(A)-(B). For purposes of calculating the average
monthly balance in a prisoner's trust fund account for
the six-month period preceding the filing of a lawsuit,
Section 1915 does not specify whether a court should use
opening monthly balances, daily balances, or closing monthly
balances and therefore the Court has elected more or less
arbitrarily to use opening monthly balances, meaning the
amount in Ayoubi's trust fund account on the first day of
each of the six months preceding the filing of the Notice of
Appeal. See Pinkin v. Ayzenberg, No. 98 C 5637, 1999
WL 410035, at *1 n.1 (N.D. Ill. May 27, 1999) (noting that,
because Section 1915 is ambiguous as to whether opening
monthly balances, daily balances, or closing monthly balances
should be used to calculate a prisoner's initial partial
filing fee, a court is free to use any one of the three or to
rely solely upon average monthly deposits to a prisoner's
trust fund account in calculating the fee). The $485.55 fee
represents twenty percent of the average of opening monthly
balances for the six months preceding the filing of the
Notice of Appeal. Thus, the Court denies Ayoubi's request
to re-calculate the initial partial filing fee.
the Court DENIES Ayoubi's Motion for
Leave to Appeal in forma pauperis (Doc. 145) and
finds his Motion for Extension of Time (Doc. 143) to be
MOOT. The Court also GRANTS in
part and DENIES in part
Ayoubi's Motion to Alter/Amend IFP Order (Doc. 147). The
motion is granted the extent Ayoubi asks the Court to conduct
an inquiry as to whether he can proceed under the imminent
danger exception but denied as to his request for the Court
to re-calculate the initial partial filing fee.
IS SO ORDERED.