Opinion
Civil Action 2:09-cv-822.
April 7, 2010
ORDER
On February 18, 2010, the Court issued a deficiency order directing the Clerk of Court to enter judgment dismissing this case because Plaintiff had failed to either pay the filing fee or move to proceed in forma pauperis. Plaintiff, who is incarcerated at the Chillicothe Correctional Institution, maintains (Docs. 5, 20, 25, 26) that he is not a prisoner for purposes of the federal statute governing proceeding in forma pauperis, 28 U.S.C. § 1915. He has filed a notice of appeal. In response to the Magistrate Judge's March 1, 2010 deficiency order, Plaintiff has now moved to proceed on appeal in forma pauperis, but has not executed an application and affidavit by an incarcerated person to proceed without prepayment of fees, again on grounds that he is not a prisoner.
Plaintiff, as a prisoner, has failed to meet his obligation under 28 U.S.C. § 1915(a)(2) to submit an account statement from his prison's cashier. Furthermore, 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." An appeal is taken in good faith if it raises "any issue not frivolous." Coppedge v. United States, 369 U.S. 438, 445 (1962). A complaint is frivolous when plaintiff "cannot make any claim with a rational or arguable basis in law or in fact." Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990) (citing Williams v. Faulkner, 837 F.2d 304, 307 (7th Cir. 1988)). See also Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The contention that Plaintiff is not a "prisoner" for purposes of 28 U.S.C. § 1915 is frivolous. Plaintiff, who identifies himself as "#524-366" and whose address is the Chillicothe Correctional Institution, is a "person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h). His appeal of this question is not taken in good faith. For this reason, and because he has failed to comply with the requirements of 28 U.S.C. § 1915(a)(2), his motion for leave to proceed on appeal in forma pauperis (Doc. 25) is DENIED.
As Doc. 26 is a praecipe for trial court record, the Clerk of Court is DIRECTED to terminate it as a motion.