Opinion
Civil Action No. SA-03-CA-1128 FB (NN).
September 23, 2004
ORDER DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL
The matter before the Court is plaintiff's Notice of Appeal and Application to Proceed in forma pauperis (IFP), filed on September 10, 2004 (docket entries 40 and 41). Plaintiff was granted leave to proceed IFP before the trial court on November 13, 2003 (docket entry 2). Pursuant to Federal Rule of Appellate Procedure 24(a)(3), he
may proceed on appeal in forma pauperis without further authorization, unless
(A) the district court — before or after the notice of appeal is filed — certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding . . .
In his Notice of Appeal, plaintiff articulates his dissatisfaction with the Court's previous rulings and refusal to listen to audio tape evidence he attempted to present at a hearing (docket entry 40). Similarly, plaintiff challenges this Court's refusal to appoint him counsel. See docket entries 15, 31.
Plaintiff's original and amended complaints attempted to state claims under the Americans with Disabilities Act, the Fair Housing Act and the Texas Penal Code. Plaintiff averred in very vague, and oftentimes undecipherable, allegations that the defendants failed to make reasonable accommodations for his mental disability with respect to his subsidized housing. Despite several opportunities to formally amend his complaint, as well as an opportunity to explain orally the legal and factual basis for his claims, plaintiff was unable to state a claim, or claims, upon which relief might be granted. For this reason, I issued a Memorandum and Recommendation that defendants' motion to dismiss (docket entry 5) be granted. Plaintiff objected to the Memorandum and Recommendation (docket entry 37). After conducting a de novo review, Honorable Judge Fred Biery accepted the Memorandum and Recommendation and granted defendants' motion to dismiss as to all claims contained in plaintiff's complaint (docket entry 38).
In my Memorandum and Recommendation, I thoroughly reviewed all of plaintiff's pleadings and the arguments contained therein. In his Notice of Appeal, plaintiff challenges the outcome — i.e. that his case was dismissed — but fails to provide any cogent argument as to why the outcome was incorrect (docket entry 40). In addition, plaintiff fails to provide any legal authority, or refer to any facts established in the record, which support his appeal. Accordingly, I find and so certify that the appeal is not taken in good faith. On that basis, plaintiff's application to proceed IFP will be DENIED.
In addition, it appears that plaintiff may be "not otherwise entitled" to proceed IFP. Plaintiff's most recent application to proceed IFP is incomplete. Plaintiff wrote that he receives SSI from Social Security, but failed to explain the amount of SSI he receives each month. Moreover, plaintiff stated that he received no money over the past twelve months and had no cash in a checking or savings account. However, he indicated that he was "buying a house $39,000.00 + intrest at %13 ( sic)." ( See docket entry 41, ¶¶ 5, 8). Although plaintiff listed his monthly expenses (mortgage, electricity, water, food and phone) with specificity, his failure to provide his monthly income (and any assets) with specificity deprives the court of the opportunity to determine whether plaintiff is financially entitled to proceed IFP. Similarly, plaintiff has not completed the application in its entirety, thereby failing to meet his burden of establishing his entitlement to proceed IFP.
For all the foregoing reasons, I find that plaintiff is not entitled to proceed IFP on appeal. Plaintiff's appeal is not taken in good faith and plaintiff has failed to meet his burden of proving that he is entitled to proceed IFP. Therefore, plaintiff's application to proceed IFP on appeal is hereby DENIED.
It is SO ORDERED.