United States District Court, E.D. Tennessee, Knoxville
REPORT AND RECOMMENDATION
C. POPLIN UNITED STATES MAGISTRATE JUDGE
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and the Order of Referral [Doc.
138] of the Chief District Judge.
before the Court is Plaintiff's Application to Appeal In
Forma Pauperis (“Application”) [Doc. 137].
Plaintiff seeks to appeal the Chief District Judge's
findings regarding (1) the Summary Judgment Opinion [Doc.
133] and (2) Plaintiff's Motion for Reconsideration [Doc.
117]. Accordingly, for the reasons explained below, the Court
RECOMMENDS Plaintiff's Application
[Doc. 137] be
Rule of Appellate Procedure 24(a)(1) provides that a party in
a civil action “who desires to appeal in forma pauperis
must file a motion in the district court.” In addition,
Rule 24(a)(2) states, “If the district court grants the
motion, the party may proceed on appeal without prepaying or
giving security for fees and costs, unless a statute provides
otherwise.” Fed. R. App. P. 24(a)(2). “If the
district court denies the motion, it must state its reasons
in writing.” Id. Further, 28 U.S.C. §
1915(a)(3) provides that “[a]n appeal may not be taken
in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.”
Court has reviewed the instant Application, and
Plaintiff's financial status enables him to proceed in
forma pauperis. However, the Court finds that Plaintiff's
appeal is not taken in good faith. See Shepard v.
Morvzin, No. 16-3236, 2016 WL 10592246, at *1 (6th Cir.
Dec. 9, 2016) (explaining that an appeal that ‘lacks an
arguable basis either in law or in fact' would not be
taken in good faith”) (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)).
Plaintiff appeals the Chief District Judge's findings in
the summary judgment opinion. Particularly, Plaintiff
contends the Chief District Judge relied on “false and
misleading information” in Plaintiff's criminal
case. [Doc. 137-1 at 10]. Secondly, Plaintiff appeals the
Chief District Judge's denial of Plaintiff's Motion
for Reconsideration [Doc. 117]. Specifically, Plaintiff
argues the Court should have allowed him more time to respond
to Defendants' Motions for Summary Judgment [Docs. 106,
110]. For the following reasons, Plaintiff's appeals have
no arguable basis in law or fact.
Summary Judgment Opinion
the facts of this case establish Defendants did not use
excessive force by breaking Plaintiff's car window when
placing him under arrest because Plaintiff failed to comply
with Defendant Millsaps's lawful demands and proceeded to
speed away from the officer. [Doc. 133 at 10]. The law is
clear that a plaintiff cannot bring a § 1983 action
which challenges the validity of a state criminal conviction
unless such conviction has since been invalidated. Heck
v. Humphrey, 512 U.S. 477, 487 (1994). Here, Plaintiff
was convicted of evading arrest, reckless endangerment, and
assault, and those convictions have not since been
collateral estoppel precludes Plaintiff from raising the
issue of whether his arrest was unlawful. As the Chief
District Judge stated, Plaintiff was “found guilty of
speeding, reckless endangerment, simple assault, evading
arrest with risk of death, violation of Financial
Responsibility, and driving on a suspended license.”
[Doc. 133 at 13]. Thus, whether Plaintiff's arrest was
lawful had already been decided, so collateral estoppel
precludes re-litigating that issue.
addition, the Chief District Judge found Plaintiff did not
adequately plead a claim for conspiracy under 42 U.S.C.
§§ 1985 and 1986 because his Complaint contained
conclusory allegations without any factual support. Further,
Plaintiff cannot assert a substantive due process claim for
excessive force under the Fourteenth Amendment because the
Fourth Amendment governs that claim. Likewise, the Chief
District Judge found Defendants did not retaliate against
Plaintiff for exercising his right to oppose police action
because Defendant Millsaps had probable cause to arrest
Plaintiff. [Id. at 19].
the facts of this case fail to establish that Defendants
denied Plaintiff medical care. Officer Bivens accompanied
Plaintiff to the hospital where Plaintiff received care for
his injured finger. Likewise, the jail medical staff
consistently provided Plaintiff medical care as necessary. In
addition, the jail conditions during Plaintiff's
incarceration did not violate the Fourteenth or Eighth
Amendments because the record showed that the jail provided
Plaintiff with adequate accommodations, and his complaints
about living conditions were “no more than temporary
inconveniences.” [Id. at 23]. Finally, with
respect to Plaintiff's remaining state law claims, the
Chief District Judge declined to exercise supplemental
jurisdiction over such claims and dismissed them without
prejudice. [Id. at 26]. Pursuant to 28 U.S.C. §
1367(c)(3), “district courts may decline to exercise
supplemental jurisdiction over a claim . . . if the district
court has dismissed all claims over which it has original
Motion for Reconsideration
mentioned above, Plaintiff appeals the Court's order
[Doc. 117] denying him an additional sixty (60) days to
respond to Defendants' Motions for Summary Judgment.
After Defendants filed their Motions for Summary Judgment
[Docs. 106, 110], Plaintiff filed a Motion for Extension of
Time [Doc. 115] requesting an additional sixty (60) days to
respond to Defendants' Motions for Summary Judgment. In
that Motion, Plaintiff emphasized that Defendants'
Motions were lengthy and that he lacks the resources and
legal training of Defendants' attorneys to respond within
the time required by the Court. See E.D. Tenn. L.R.
7.1(a) (stating parties have twenty-one (21) to respond to
dispositive motions unless the Court orders otherwise). The
Chief District Judge granted Plaintiff's Motion for
additional time, but allowed Plaintiff only an additional
twelve (12) days to ...