Opinion
Case No. 4:05cv302-RH/WCS.
February 2, 2006
REPORT AND RECOMMENDATION
On January 30, 2006, a notice of appeal was received in this case from the Eleventh Circuit Court of Appeals. Doc. 27. Plaintiff, proceeding pro se, submitted the notice of appeal directly to the Eleventh Circuit rather than filing it with this Court, and the appellate court forwarded the notice to this Court to be filed as of January 23, 2006, the date on which the Eleventh Circuit received it. Id.
The notice of appeal submitted by Plaintiff is not of a final order. Doc. 27. rather, the order Plaintiff is attempting to appeal is an order denying Plaintiff's successive motion to change venue and remand to state court or, in the alternative, a motion for disqualification, doc. 26. This order is not a final or appealable order because it does not dispose of any of the claims in this case. See 28 U.S.C. § 1291. Therefore, because the Eleventh Circuit Court of Appeals does not acquire jurisdiction over this action, because the appeal is frivolous, and considering the fact that Plaintiff has had more than three cases dismissed under § 1915(e)(2)(b) because they were frivolous, malicious, or failed to state a claim, Plaintiff is not otherwise entitled to in forma pauperis status. Thus, it is recommended that Plaintiff's motion seeking leave to proceed in forma pauperis on appeal be denied. Should Plaintiff desire to pursue this appeal, he should be required to pay the full amount of the $255.00 appellate filing fee.
Plaintiff had an appeal dismissed as frivolous on October 23, 2000, district court case # 3:99cv143; case # 3:99cv17 was dismissed for failing to state a claim on May 12, 1999, and the appeal of that dismissal was dismissed as frivolous on November 3, 1999. Those are three "strikes" under 28 U.S.C. § 1915(g), precluding Plaintiff from being granted in forma pauperis status.
In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's in forma pauperis motion, doc. 27, be DENIED because the appeal is frivolous and because Plaintiff is not entitled to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g).