Opinion
No. 15-2193-JDT-tmp
09-24-2015
ANDREA BURNSIDE, Plaintiff, v. UNIVERSITY OF MEMPHIS, ET AL., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION FOR DISMISSAL, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On March 20, 2015, Plaintiff Andrea Burnside, a resident of Memphis, Tennessee, filed a pro se complaint accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) United States Magistrate Judge Tu M. Pham subsequently granted leave to proceed in forma pauperis. (ECF No. 4.) On August 12, 2015, Magistrate Judge Pham issued a Report and Recommendation ("R&R") in which he recommended the case be dismissed sua sponte for failure to state a claim. (ECF No. 5.) Objections to the R&R were due on or before August 31, 2015. See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a), (d). However, Plaintiff has filed no objections.
Plaintiff has sued the University of Memphis and several employees thereof, alleging that her employment with the University was terminated in violation of her constitutional rights. Plaintiff also asserts various claims under Tennessee law. The Magistrate Judge has recommended dismissal prior to service on the Defendant on the ground that all of Plaintiff's claims are barred by the Eleventh Amendment's grant of sovereign immunity. Having reviewed the complaint and the law, the Court agrees with Magistrate Judge Pham's recommendation. The issuance of a more detailed written opinion is unnecessary. Therefore, for the reasons stated in the R&R, the complaint is hereby DISMISSED for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii).
The Court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis, should she 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)(3) provides that if a party was permitted to proceed in forma pauperis in the district court, she may also proceed on appeal in forma pauperis without further authorization unless the district court "certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis." If the district court denies pauper status, the party may file a 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 court to determine that a complaint should be dismissed prior to service on the defendants, 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 for failure to state a claim 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, she must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment. IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE