Celske v. Edwards

• Decision Date: 11 January 1999
• Docket Number: No. 98-2064,98-2064
• Parties: Curtis J. CELSKE, Plaintiff-Appellant, v. Thomas EDWARDS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 396

164 F.3d 396

Curtis J. CELSKE, Plaintiff-Appellant, v. Thomas EDWARDS, et al., Defendants-Appellees.

No. 98-2064.

United States Court of Appeals, Seventh Circuit.

Submitted Dec. 15, 1998.

Decided Jan. 11, 1999.

Curtis J. Celske, Racine Correctional Institution, Sturtevant, WI, for Plaintiff-Appellant.

James E. Doyle, Office of Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for Defendant-Appellees.

Before POSNER, Chief Judge, and BAUER and MANION, Circuit Judges.

POSNER, Chief Judge.

Curtis Celske, a state prisoner, asks leave under 28 U.S.C. § 1915 to appeal in forma pauperis from the dismissal on summary judgment of his suit for damages for deprivation of liberty without due process of law, in violation of the Fourteenth Amendment, and for violation of the cruel and unusual punishments clause of the Eighth Amendment, made applicable to the states by the Fourteenth Amendment. The district judge, although he had authorized Celske to proceed in the district court in forma pauperis, certified in writing that Celske's appeal is not taken in good faith, and this certification is a bar to an appeal in forma pauperis, § 1915(a)(3), unless we disagree with the district judge's determination of bad faith. Fed. R.App. P. 24(a); Sperow v. Melvin, 153 F.3d 780, 781 (7th Cir.1998); Newlin v. Helman, 123 F.3d 429, 432 (7th Cir.1997); Henderson v. Norris, 129 F.3d 481, 484 (8th Cir.1997); Wooten v. District of Columbia Metropolitan Police Dept., 129 F.3d 206, 207 (D.C.Cir.1997); Baugh v. Taylor, 117 F.3d 197, 200-01 (5th Cir.1997); but cf. McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir.1997). Because the judge's certification contained no reasons, we remanded the case to him to provide a statement of reasons. He has responded by informing us that "plaintiff has been told that his Fourteenth Amendment due process and Eighth Amendment deliberate indifference claims were foreclosed and then filed a notice of appeal without offering any argument to undermine the conclusion that both claims should be dismissed." In so ruling, the judge was paraphrasing a passage from our opinion in Newlin v. Helman, supra, 123 F.3d at 433: "A plaintiff who has been told that the claim is foreclosed and then files a notice of appeal without offering any argument to undermine the district court's conclusion is acting in bad faith."

In that case, the plaintiff's suit was both untimely and barred by absolute immunity; it was clearly foreclosed, and in these circumstances, with no argument by the plaintiff that he had some colorable ground for appealing, the inference of bad faith was compelling. In the present case, the district judge dismissed the plaintiff's due process claim after the plaintiff failed to respond to the defendants' motion to dismiss and the judge determined that "there were insufficient allegations" to support the claim. And he granted summary judgment on the plaintiff's claim of cruel and unusual punishment after he "determined from all the evidence provided that plaintiff received reasonable treatment for his back problem and ... defendants were not deliberately indifferent to his chronic lower back pain." The plaintiff then filed his notice of appeal, which the district judge "construed as a request to proceed in forma pauperis on appeal. Plaintiff's notice of appeal did not state any reason for his appeal."

Nothing in the judge's statement of the basis for his decision on Celske's claims suggests that they are frivolous or that an appeal would be futile. See also Pate v. Stevens, 163 F.3d 437 (7th Cir.1998) (per curiam). Judgments of dismissal based on insufficient allegations in the complaint, and grants of summary judgment based on "all the evidence," are occasionally reversed. Dismissals on the basis of insufficient allegations are sometimes inconsistent with the notice-pleading philosophy of the Federal Rules of Civil Procedure, and summary judgments that are based on a weighing of conflicting evidence sometimes violate Rule 56, which authorizes summary judgment only if there is no genuine issue of material...