Opinion
Civil Action No. 15-cv-00681-CMA-MJW
06-26-2015
MAZEN ARAKJI, Plaintiff, v. MARTINEZ et al., Defendants.
REPORT & RECOMMENDATION ON DOCKET No. 81
It is hereby RECOMMENDED that Plaintiff's Motion for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24 (Docket No. 81) be DENIED.
The Court finds and would certify under 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(4)(B)-in light of Plaintiff's conduct in filing objections to at least seven routine and simple pretrial orders, and now seeking to appeal non-appealable orders without showing any reasoned, nonfrivolous basis for that appeal-that Plaintiff's appeal is not taken in good faith and is instead motivated by dilatory and/or disputatious intent.
Orders denying leave to proceed in forma pauperis are generally treated as dispositive for purposes of 28 U.S.C. § 636(b), see, e.g., Pursley v. Estep, 2008 WL 793644 (D. Colo. Mar. 24, 2008) (applying rule in context of § 1915(a)(3)); Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (establishing rule in general), and therefore the undersigned lacks the authority to deny the motion and certify bad faith. Accordingly, the undersigned recommends that the District Judge deny leave and certify that the appeal is not taken in good faith.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn , 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions, Makin v. Colo. Dep't of Corr. , 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). Dated: June 26, 2015
Denver, Colorado
/s/ Michael J . Watanabe
Michael J. Watanabe
United States Magistrate Judge