United States District Court, W.D. Tennessee, Eastern Division
ORDER ADOPTING REPORT AND RECOMMENDATION FOR DISMISSAL, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
JAMES D. TODD, District Judge.
On January 23, 2014, Plaintiff Leonard Quinn filed a pro se civil complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion for leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) Leave to proceed in forma pauperis was granted on February 7, 2014. (ECF No. 7.) On August 25, 2014, United States Magistrate Judge Edward G. Bryant issued a Report and Recommendation ("R&R") in which he recommended the case be dismissed sua sponte pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6) and 28 U.S.C. § 1915(e)(2)(B). (ECF No. 9.) Objections to the R&R were due on or before September 11, 2014. See Fed.R.Civ.P. 72(b); see also Fed.R.Civ.P. 6(d). However, Plaintiff has filed no objections.
The Court has reviewed the complaint and the law and agrees with Magistrate Judge Vescovo's recommendation for dismissal. Therefore, the Court ADOPTS the R&R and hereby DISMISSES this case pursuant to § 1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(1) an (b)(6).
The Court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis, should he seek to do so. Pursuant to the Federal Rules of Appellate Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must obtain pauper status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a)(3) provides that if a party was permitted to proceed in forma pauperis in the district court, he may also proceed on appeal in forma pauperis without further authorization unless the district court "certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis." If the district court denies pauper status, the party may file a motion to proceed in forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It would be inconsistent for a court to determine that a complaint should be dismissed prior to service on the defendants, but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this case also compel the conclusion that an appeal would not be taken in good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.
The Clerk is directed to prepare ...