Summary
dismissing claims with prejudice when statute of limitations had already passed
Summary of this case from Trobaugh v. MeltonOpinion
No. 12-2957-JDT-tmp
01-02-2014
KUNTA J. COMMODORE, Plaintiff, v. GLEN WILLIAMS, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
AND
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
On November 21, 2013, Magistrate Tu M. Pham issued a report and recommendation on the pro se complaint that was filed in this matter [DE# 13]. Magistrate Judge Pham has recommended that the court grant the motion of dismiss of Defendant Officer M. Boyd [DE# 9] for failure to state a claim. He has also recommended the sua sponte dismissal of the claims against Defendant Officer Williams pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii)
No timely objections have been filed. Therefore, Magistrate Judge Pham's report and recommendation is ADOPTED in its entirety, and this matter is hereby DISMISSED.
The court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis. 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, he 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 The same considerations that lead the court to dismiss this case 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, he 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 within thirty (30) days.
Pursuant to Fed. R. App. P. 3(a), any notice of appeal should be filed in this court. A motion to appeal in forma pauperis then should be filed directly in the United States Court of Appeals for the Sixth Circuit. Unless he is specifically instructed to do so, Plaintiff should not send to this court copies of motions intended for filing in the Sixth Circuit.
The clerk is directed to enter judgment accordingly. IT IS SO ORDERED.
____________________________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE