United States District Court, W.D. Tennessee
June 10, 2015
LEONARD QUINN, Plaintiff,
WILLIAM ROBILIO, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE FOR DISMISSAL AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
JAMES D. TODD, District Judge.
On May 20, 2015, Magistrate Judge Diane K. Vescovo issued a report and recommendation [DE# 5] in which she recommends the sua sponte dismissal of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii) for failure to state a claim on which relief may be granted. No timely objection has been filed. Consequently, the report and recommendation for dismissal of this matter is ADOPTED, and the case is hereby DISMISSED.
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 seeks pauper status on appeal, he must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the party must file his 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 for failure to state a claim 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 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.
IT IS SO ORDERED.