Smego v. Adams et al

RESPONSE to Motion re MOTION for Leave to Appeal in forma pauperis And Request for Transcript/Record

C.D. Ill.April 22, 2015

140-1524 RPV #6191112 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS RICHARD M. SMEGO ) ) Plaintiff, ) ) v. ) Court No.: 08-3142 ) Judge Myerscough ) DR. JACQUELINE MITCHELL ) ) Defendant ) ) DR. MITCHELL’S RESPONSE TO PLAINTIFF’S MOTION FOR LEAVE TO PROCEED INTO APPEAL REMAINING IN FORMA PAUPERIS, AND REQUEST FOR TRANSCRIPT/RECORD Defendant JACQUELINE MITCHELL, D.D.S., through her attorneys, ROBERT P. VOGT of WELDON-LINNE & VOGT, submits this Response to the Plaintiff’s 24(a)(1)(c) Motion for Leave to Proceed Into Appeal Remaining In Forma Pauperis, and Request for Transcript/Record. 1. Plaintiff is seeking to leave to proceed with his appeal in forma pauperis (“IFP”) and to be provided with a complete record in this case without payment. 2. Pursuant to Rule 24 of the Federal Rules of Appellate Procedure provides in pertinent part: (3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless: (A) the district court—before or after the notice of appeal is filed— certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or E-FILED Wednesday, 22 April, 2015 04:08:43 PM Clerk, U.S. District Court, ILCD 3:08-cv-03142-SEM-TSH # 365 Page 1 of 5 (B) a statute provides otherwise. (Emphasis Added). 3. 28 U.S.C. sec. 1915 governs proceedings in forma pauperis in the federal courts. Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). 28 USCS § 1915 provides in pertinent part: (a) (1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress. (2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined. 4. Plaintiff has not submitted the required affidavit or certified copy of the trust fund account statement in support of his motion as required by 28 USCS § 1915. 5. Moreover, Lee v. Clinton explains that IFP status on appeal under 28 USCS § 1915 requires a dual showing: both a party’s lack of financial means and the party’s advancement of a nonfrivolous claim in the legal sense. 209 F.3d at 1026. 6. Here, the plaintiff fails to meet the criteria for proceeding with IFP status as set forth in 28 USCS § 1915 and Lee as the plaintiff has not demonstrated that he lacks the financial means to pursue an appeal as required by 28 USCS § 1915 (a)(2). 7. The Defendant also believes that the plaintiff’s appeal lacks merit. Courts in this district have found appeals similar to the one brought by the plaintiff lack a good faith basis. See 3:08-cv-03142-SEM-TSH # 365 Page 2 of 5 Ware v. Randolph, 2009 U.S. Dist. LEXIS 26977 at 5 (C.D. Ill., March 31, 2009) (concluding plaintiff failed to identify issues that are debatable amongst jurists, or that could be resolved in a different manner, or that are sufficient to deserve encouragement to proceed further). 8. As the plaintiff has failed to demonstrate that he remains financially unable to litigate this matter or obtain copies of the record in this matter and that he has a good faith basis for appeal, he should not be allowed to proceed on appeal in forma pauperis or be provided with a free copy of the complete record in this case. WHEREFORE, the Defendant, DR. JACQUELINE MITCHELL, prays that this Court deny the Plaintiff’s 24(a)(1)(c) Motion for Leave to Proceed Into Appeal Remaining In Forma Pauperis, and Request for Transcript/Record. Respectfully submitted, WELDON-LINNE & VOGT By:_/s/ Robert P. Vogt ___ Robert P. Vogt Weldon-Linne & Vogt 20 South Clark Street Suite 2050 Chicago, Illinois 60603 312/236-5151 #6191112 Pldgs./RSP to MTN to proceed on appeal in forma pauperis 3:08-cv-03142-SEM-TSH # 365 Page 3 of 5 140-1524 RPV/MGR #6191112 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS RICHARD M. SMEGO ) ) Plaintiff, ) ) v. ) Court No.: 08-3142 ) ) DR. JACQUELINE MITCHELL ) ) Defendant ) CERTIFICATE OF SERVICE I, Robert P. Vogt, certify that on April 22, 2014, I electronically filed RESPONSE TO PLAINTIFF’S MOTION FOR LEAVE TO PROCEED INTO APPEAL REMAINING IN FORMA PAUPERIS, AND REQUEST FOR TRANSCRIPT/RECORD, with the Clerk of the Court using the CM/ECF system which will send notification of such filing(s) to the following:  N/A and hereby certify that on April 22, 2014 I mailed by United States Postal Service, the document(s) to the following non-registered participant(s): Richard M Smego RUSHVILLE IL Department of Human Services Treatment & Detention Facility 17019 County Farm Road Rushville, IL 62681-2000 Respectfully submitted, WELDON-LINNE & VOGT By:_/s/ Robert P. Vogt ___ Robert P. Vogt 3:08-cv-03142-SEM-TSH # 365 Page 4 of 5 WELDON-LINNE & VOGT Attorneys for Defendant 20 South Clark Street Suite 2050 Chicago, Illinois 60603 (312) 236-5151 3:08-cv-03142-SEM-TSH # 365 Page 5 of 5