United States District Court, Western District of Tennessee, Eastern Division
ORDER DENYING REQUEST FOR REPRESENTATION, ADOPTING REPORT AND RECOMMENDATION, DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
J. DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE
The Plaintiff, Johnny Polk, brought this pro se action on November 26, 2014 against the Defendant, Matthew Bourlakas, for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Docket Entry (“D.E.”) 1.) Plaintiff filed amended complaints on December 4 and 5, 2014, raising the same claims. (D.E. 6–7.)
In a report and recommendation entered April 20, 2015, United States Magistrate Judge Edward G. Bryant recommended that the second amended complaint be dismissed sua sponte for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (D.E. 13.) According to the docket, Plaintiff has not submitted objections, and the time for doing so has expired. Therefore, the report and recommendation is ADOPTED and this matter is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
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) 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.” Fed. R. App. P. 24(a)(3)(A). 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 district court to determine that a complaint should be dismissed prior to service on a defendant, 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 Rule 24(a), that any appeal in this matter by Plaintiff would not be 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 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals.
The Clerk of Court is DIRECTED to ...