Volner v. Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

STEVEN RYAN VOLNER, )

Plaintiff,

v. No. 1:21-cv-00054-NAB

JASON LEWIS, et al., }

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court on plaintiff's motion for leave to proceed in forma

pauperis on appeal, his motion to file an amended complaint, and his motion to appoint counsel.

(Docket No. 13; Docket No. 14; Docket No. 15). For the reasons discussed below, the motions

will be denied.

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the South Central

Correctional Center in Licking, Missouri. On April 8, 2021, he filed a prisoner civil rights

complaint pursuant to 42 U.S.C. § 1983. (Docket No. 1). Because plaintiff was proceeding in forma

pauperis, the Court reviewed his complaint under 28 U.S.C. § 1915. Based on that review, the

Court dismissed plaintiff's case without prejudice on August 30, 2021. (Docket No. 9).

On November 5, 2021, the Court received from plaintiff a notice of appeal, a motion for

leave to proceed in forma pauperis on appeal, an amended complaint, and a motion to appoint

counsel. (Docket No. 12; Docket No. 13; Docket No. 14; Docket No. 15). The notice of appeal

and motion for leave to proceed in forma pauperis on appeal were both dated September 9, 2021.

The amended complaint and the motion to appoint counsel were both dated October 26, 2021.

Motion for Leave to Proceed in Forma Pauperis on Appeal

Plaintiff has filed a motion for leave to proceed in forma pauperis on appeal. (Docket No.

13). When this Court dismissed plaintiffs case, it certified in writing that an appeal would not be

taken in good faith. See 28 U.S.C. § 1915(a)(3) (providing that “[a]n appeal may not be taken in

forma pauperis if the trial court certifies in writing that it is not taken in good faith”). It is not

apparent that plaintiff now seeks appellate review of any issue that is not frivolous. See Coppedge

v. United States, 369 U.S. 438, 445 (1962) (explaining that “good faith” is “judged by an objective

standard,” and that it is “demonstrated when [plaintiff] seeks appellate review of any issue not

frivolous”). The Court will therefore deny the motion.

Motion to File Amended Complaint and Motion for Appointment of Counsel

Plaintiff has filed an amended complaint on a Court-provided form. (Docket No. 14). The

Court has construed this as a motion for leave to file an amended complaint. Along with the

complaint, he filed a motion for appointment of counsel. (Docket No. 15). Both the amended

complaint and the motion to appoint counsel are dated October 26, 2021, which is after the date

on his notice of appeal.

Once a case has been appealed, the issues before the appellate court should not be

undermined or altered. Liddell by Liddell v. Board of Educ. of City of St. Louis, 73 F.3d 819, 822

(8" Cir. 1996). “The filing of a notice of appeal is an event of jurisdictional significance — it confers

jurisdiction on the court of appeals and 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). Because plaintiff has filed an appeal challenging the dismissal of his complaint, his motion

for leave to file an amended complaint and his motion for appointment of counsel must be denied.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis

on appeal (Docket No. 13) is DENIED. See 28 U.S.C. 1915(a)(3).

IT IS FURTHER ORDERED that plaintiff's motion for leave to file an amended

complaint (Docket No. 14) and motion for appointment of counsel (Docket No. 15) are DENIED.

Dated this Hh day of hive ay her , 2021.

ZA phaalecey GY

STEPHEN N. LIMBAUGH, JR’

SENIOR UNITED STATES DISTRICT JUDGE