Opinion
Civil Action 6:20-CV-00060
03-07-2022
REGINALD ANDRE CALLIS, Petitioner, v. BOBBY LUMPKIN, Respondent.
MEMORANDUM OPINION AND ORDER ACCEPTING IN PART MEMORANDUM AND RECOMMENDATION
DREW B. TIPTON, UNITED STATES DISTRICT JUDGE
Pending before the Court is the January 28, 2022 Memorandum and Recommendation (“M&R”) signed by Magistrate Judge Julie K. Hampton. (Dkt. No. 41). In the M&R, Magistrate Judge Hampton recommends that the Court (1) deny Petitioner Reginald Andre Callis's Application for Leave to Proceed In Forma Pauperis on Appeal because he can pay the filing fee; and (2) order Callis to pay the fee within twenty days.
The Parties received proper notice and the opportunity to object to the M&R. See 28 U.S.C. § 636(b)(1). Callis received notice on February 3, 2022, (Dkt. No. 44), but did not object. Instead, Callis filed a second Application for Leave to Proceed In Forma Pauperis on Appeal. (Dkt. No. 42). Because Callis did not object to the M&R, the Court's review of the M&R is straightforward: plain error. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005).
The second application provides more detail than the first. Compare (Dkt. No. 39) with (Dkt. No. 42). The second application, however, was not Callis's attempt at addressing the deficiencies identified in the M&R because the second application was signed the day before Callis received notice of the M&R. Compare (Dkt. No. 42 at 2) with (Dkt. No. 44).
Magistrate Judge Hampton originally recommended that the Court deny the Application to Proceed In Forma Pauperis because Callis had enough money to pay the filing fee. (Dkt. No. 41 at 1). Since then, Callis has provided documentation that he no longer has money to pay the fee. (Dkt. No. 43). Despite the change in Callis's ability to pay since the M&R was issued, the Court agrees with the M&R's recommendation to deny the Application to Proceed In Forma Pauperis, albeit on an alternative basis.
As an initial matter, “[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.” 28 U.S.C. § 1915(a)(3). “Good faith is demonstrated when a party seeks appellate review of any issue not frivolous.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (per curiam) (internal quotations omitted). “The inquiry is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Id. (internal quotations omitted). If the district court certifies that the appeal is not taken in good faith, it must “set forth in writing the reasons” for that decision. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Here, the appeal does not involve legal points that are arguable on the merits. As the Court twice explained, the deadline to file the habeas petition was over a decade ago, and Callis has not presented a nonfrivolous argument as to equitable tolling. (Dkt. No. 30); (Dkt. No. 37); see also Baugh, 117 F.3d at 202 n.21 (explaining that a district court can comply with the written reasons requirement by “incorporat[ing] by reference its decision dismissing the prisoner's complaint on the merits”). As such, the Court certifies that Callis's appeal is not taken in good faith.
Next, under the Federal Rules of Appellate Procedure:
Except as stated in Rule 24(a)(3), a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.Fed. R. App. P. 24(a)(1). Rule 24(a)(3) does not apply because Callis was not permitted to proceed in forma pauperis in this case; instead, he paid the filing fee. See (Dkt. No. 7). Thus, Callis was required to attach an affidavit addressing the three circumstances under Rule 24(a)(1). He has not. For example, the Applications to Proceed In Forma Pauperis do not state the issues that Callis intends to present on appeal. In sum, Callis fails to provide a basis for proceeding in forma pauperis on appeal.
With this backdrop, the Court ACCEPTS IN PART the M&R. The Court accepts the recommendation to deny the Application to Proceed In Forma Pauperis. The Court, however, denies the application with prejudice, rather than without prejudice. It would be futile to provide Callis an opportunity to cure the deficiency under the Federal Rules of Appellate Procedure because the appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3).
The Court further CERTIFIES that any appeal of this action would not be taken in good faith. The Court finally DENIES WITH PREJUDICE Callis's Applications to Proceed In Forma Pauperis on Appeal. (Dkt. No. 39); (Dkt. No. 42). Callis may “contest the certification decision by filing a motion for leave to proceed IFP with the court of appeals.” Baugh, 117 F.3d at 201; see also Fed. R. App. P. 24(a)(5).
It is SO ORDERED.