Harris v. Milwaukee County Circuit Court, 88-2870
| Decision Date | 13 October 1989 |
| Docket Number | No. 88-2870,88-2870 |
| Citation | 886 F.2d 982 |
| Parties | Davis HARRIS, Plaintiff-Appellant, v. MILWAUKEE COUNTY CIRCUIT COURT and David V. Jennings, Jr., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Davis Harris, Waupun Correctional Institution, Waupun, Wis., pro se.
Donald J. Hanaway, Atty. Gen., Office of the Attorney General, Wisconsin Dept. of Justice, Madison, Wis., for defendants-appellees.
Before CUMMINGS, CUDAHY, and POSNER, Circuit Judges.
Davis Harris is a Wisconsin state prisoner who wants to change his name to Da'ud Zaki Hakim. He brought suit in state court under Wis.Stat. Sec. 786.36 to change his name by appearing in person before a state judge, but the suit failed when the judge refused to grant Harris a writ of habeas corpus ad testificandum that would have allowed him to leave the prison to appear in court. Harris appealed this ruling but lost, the appellate court noting that under Wisconsin law Harris could change his name just by using his new name; he did not need to bring a court action. Instead of following the suggested route, Harris sought permission from a federal district court in Wisconsin to file a suit under 42 U.S.C. Sec. 1983 against the state judge who had refused to grant the writ and against the judge's court. The complaint asks the district court to award damages for the judge's ruling and to grant Harris's request for a change of name. The district judge ruled that the proposed suit was frivolous and he therefore refused to allow Harris to proceed in forma pauperis (see 28 U.S.C. Sec. 1915(d))--that is, without paying the filing fee. In denying the request for leave to proceed in forma pauperis, the judge said:
Before the twenty days had elapsed, Harris filed a notice of appeal from the dismissal of his suit, and the first question we must consider is whether we have appellate jurisdiction. The judge's order made the judgment dismissing Harris's suit effective at the end of the twentieth day from the receipt of the order. Hence the notice of appeal was filed prematurely. But Rule 4(a)(2) of the Federal Rules of Appellate Procedure provides, with an immaterial exception, that "a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof." This case fits the description, provided a postdated judgment of the sort the judge entered is a permissible form of judgment. We think it is. In Brekke v. Morrow, 840 F.2d 4 (7th Cir.1988), in the course of holding that an order denying leave to proceed in forma pauperis is not itself a final appealable judgment, we remarked that "in denying a motion for leave to proceed in forma pauperis the district court can set a deadline for payment of the required filing fee and provide in the order that if the deadline passes without...
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