United States District Court, S.D. Illinois
REONA J. DALY UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion to
Proceed as a Poor Person upon Appeal (Doc. 88). For the
reasons set forth below, the Motion is
an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), brings this action pursuant
to 42 U.S.C. § 1983 alleging he sustained injuries due
to fall while he was incarcerated at Lawrence Correctional
Center, and was provided inadequate medical care for those
injuries. Following a threshold review of Plaintiff's
complaint under 28 U.S.C. § 1915A, Plaintiff was allowed
to proceed on the following claims:
Count One: Defendants Lamb, Cunningham, Shah, Ahmed, Bowker,
and Johnson were deliberately indifferent to Plaintiff's
serious medical needs following his fall from a bunk bed at
Lawrence on April 10, 2017, in violation of the Eighth
Count Two: Defendant Baldwin failed to provide Plaintiff with
reasonable accommodations for his disabilities beginning
April 20, 2017, in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et seq., and the Rehabilitation Act, 29 U.S.C.
December 28, 2018, Defendant Dr. Shah filed a motion for
summary judgment for failure to exhaust administrative
remedies (Doc. 43). Defendant's motion was granted by
District Judge Staci M. Yandle on September 11, 2019, and Dr.
Shah was dismissed without prejudice (Doc. 80).
filed a notice of appeal on October 3, 2019 (Doc. 83). The
motion to appeal in forma pauperis that is now before the
Court was filed on October 16, 2019 (Doc. 88).
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 622 (citing
Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir.
2000)). The motion to proceed IFP must be supported by an
affidavit that: (1) shows the party's inability to pay or
to give security for fees and costs; (2) claims an
entitlement to redress; and (3) states the issues that the
party intends to present on appeal. See Fed. R. App.
the Court has no doubt that Plaintiff is indigent, the Court
finds that Plaintiff's appeal in this instance is not
taken in good faith because it is frivolous. Plaintiff has
appealed a non-appealable order. The Order is not final as it
dismissed only Plaintiff's claim against Dr. Shah without
prejudice. No. judgment in favor of Dr. Shah has been
entered. The Order did not dismiss Plaintiff's case and
is not an appealable final decision of the District Court
under 28 U.S.C. § 1291. Further, the contents of the
Order does not fall into any of the provisions of 28 U.S.C.
§ 1292 for an interlocutory appeal. For these reasons,
the Court DENIES Plaintiff's Motion to
Proceed as a Poor Person upon Appeal (Doc. 88).
additional note about jurisdiction is in order. Ordinarily,
an appeal to the Court of Appeals “divests the district
court of its control over those aspects of the case involved
in the appeal.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982); accord May v.
Sheahan, 226 F.3d 876, 879 (7th Cir. 2000). However, a
deficient notice of appeal does not divest the district court
of jurisdiction. Gilda Indus. Inc. v. United States,
511 F.3d 1348, 1350 (Fed. Cir. 2008). Where it is clear to
the district court that a notice of appeal is deficient
because it is untimely, lacks essential recitals, or seeks
review of a non-appealable order, the district court may
disregard the notice of appeal. Id. (citing Ruby
v. Secretary of U.S. Navy, 365 F.2d 385, 389 (9th Cir.
1966) (en banc)). Because the Court finds
Plaintiff's notice of appeal is deficient as it seeks
review of a non-appealable order, the notice does not divest
the district court of jurisdiction.
Court DIRECTS the Clerk of Court to send a
copy of this order to the Court of Appeals for use in
conjunction with Appeal No. 19-2932.