Brown v. Eplett

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

LEE ANTHONY BROWN,

Plaintiff,

v. Case No. 23-CV-497

WARDEN CHERYL EPLETT, et al.,

Defendants.

DECISION AND ORDER

On January 17, 2024, the court dismissed pro se plaintiff Lee Anthony Brown’s

case for failing to identify the Doe defendants, entering judgment accordingly. (ECF

Nos. 18. 19.) Brown filed a notice of appeal on February 16, 2024. (ECF No. 22.) The

court now considers Brown’s motion to proceed on appeal without prepayment of the

filing fee. (ECF No. 26.)

Under the Prison Litigation Reform Act, a prisoner must pay the applicable filing

fee for an appeal in full. 28 U.S.C. § 1915(b). If a prisoner does not have the money to

pay the $505.00 filing fee for an appeal in advance, he or she can request leave to proceed

in forma pauperis. To proceed with an appeal in forma pauperis, the prisoner must

complete a petition and affidavit to proceed in forma pauperis and return it to the court

along with a certified copy of the prisoner’s trust account statement showing

transactions for the prior six months. 28 U.S.C. § 1915(a)(2). The court must assess an

initial partial filing fee of twenty percent of the average monthly deposits to the

plaintiff’s prison account or average monthly balance in the plaintiff's prison account for

the six-month period immediately preceding the filing of the notice of appeal, whichever

is greater. 28 U.S.C. § 1915(b)(1).

After the initial fee is paid, the prisoner must make monthly payments of twenty

percent of the preceding month’s income until the filing fee is paid in full. 28 U.S.C. §

1915(b)(2). The agency which has custody of the prisoner will collect the money and send

payments to the court.

There are three grounds for denying a prisoner appellant’s request to proceed in

forma pauperis: the prisoner has not established indigence, the appeal is in bad faith,

or the prisoner has three strikes. See 28 U.S.C. §§ 1915(a)(2)-(3), (g). The court finds

that Brown has established that he is indigent and that he has not accrued three strikes.

That leaves only the question of whether he filed this appeal in good faith.

A party who has been granted leave to proceed in forma pauperis in the district

court may proceed in forma pauperis on appeal without further authorization unless the

district court certifies that the appeal is not taken in good faith or determines that the

party is otherwise not entitled to proceed in forma pauperis. Fed. R. App. P. 24(a). See

also, Celske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (“. . . a plaintiff who . . . was

allowed to proceed in forma pauperis in the district court retains his IFP status in the

court of appeals unless there is a certification of bad faith.”).

A district court should not apply an inappropriately high standard when making

a good faith determination. Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998). An appeal

taken in “good faith” is one that seeks review of any issue that is not frivolous, meaning

2

that it involves “legal points arguable on their merits.” Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983) (quoting Anders v. California, 386 U.S. 738 (1967)); see also

Coppedge v. United States, 369 U.S. 438, 445 (1962). On the other hand, an appeal

taken in bad faith is one that is based on a frivolous claim-- that is, a claim that no

reasonable person could suppose has any merit. Lee v. Clinton, 209 F.3d 1025, 1026

(7th Cir. 2000).

This court does not find any indication that Brown’s appeal is not taken in good

faith. Therefore, the court will grant his motion to proceed in forma pauperis on appeal.

Along with his request to proceed in forma pauperis, Brown filed a certified copy

of his prison trust account statement for the five-month period immediately preceding

the filing of his notice of appeal. A review of this information reveals that Brown is

required to pay an initial partial filing fee of $6.61, as well as additional payments

pursuant to 28 U.S.C. § 1915(b)(2). Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997),

rev’d on other grounds by, Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) and Lee v.

Clinton, 209 F.3d 1025 (7th Cir. 2000).

IT IS ORDERED that Brown’s motion for leave to proceed in forma pauperis on

appeal (ECF No. 26) is GRANTED.

IT IS FURTHER ORDERED that by April 5, 2024, Brown shall forward to the

Clerk of Court the sum of $6.61 as the initial partial filing fee in this appeal. Brown’s

failure to comply with this order may result in dismissal of this appeal. The payment

shall be clearly identified by the case name and number assigned to this action.

3

IT IS FURTHER ORDERED that, after the initial filing fee has been paid, the

agency having custody of Brown shall collect from his institution trust account the

$598.39 balance of the filing fee by collecting monthly payments from Brown’s prison

trust account in an amount equal to 20% of the preceding month's income credited to

Brown's trust account and forwarding payments to the Clerk of Court each time the

amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The

payments shall be clearly identified by the case name and number assigned to this

action. If Brown is transferred to another county, state, or federal institution, the

transferring institution shall forward a copy of this Order along with Brown's remaining

balance to the receiving institution.

IT IS ALSO ORDERED that a copy of this order be sent to the officer in charge

of the agency where Brown is confined.

IT IS ALSO ORDERED that a copy of this order be electronically provided to

PLRA Attorney, United States Court of Appeals for the Seventh Circuit, through the

court’s electronic case filing system.

Dated at Milwaukee, Wisconsin this 5th day of March, 2024.

BY THE COURT

WILLIAM E. DUFFI

United States Magistrate Judge