Opinion
No. 3-05-CV-1230-H.
August 17, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Willie Herman Jackson, Sr., appearing pro se, has filed a motion to proceed in forma pauperis on appeal. For the reasons stated herein, the district court should find that plaintiff is indigent but certify that his appeal is not taken in good faith.
I.
This is a pro se civil rights action brought by plaintiff, a former inmate in the Texas prison system, against more than 100 federal, state, and municipal agencies, elected officials, and employees. After screening the complaint, the court summarily dismissed this action as frivolous. Jackson v. Johnson, 2005 WL 1521495 (N.D. Tex. Jun. 27, 2005), rec. adopted, 2005 WL 1668084 (N.D. Tex. Jul. 13, 2005). Plaintiff filed a notice of appeal on July 26, 2005 and now seeks leave to proceed in forma pauperis on appeal.
II.
The standards governing in forma pauperis motions are set forth in 28 U.S.C. § 1915(a). A district court "may authorize the commencement, prosecution or defense of any suit . . . or appeal therein, without the prepayment of fees or security therefor, by a person who submits an affidavit that [he] is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The affidavit must also state "the nature of the action, defense or appeal and affiant's belief that [he] is entitled to redress." Id. A court may certify in writing that the appeal is not taken in good faith. Id. § 1915(a)(3). An appeal is taken in good faith if it presents an arguable issue on the merits and therefore is not frivolous. See Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962).
The information submitted by plaintiff shows that he lacks the financial resources to pay the costs of an appeal. However, plaintiff's appeal is patently frivolous. For the reasons set forth in the report and recommendation dated June 27, 2005, which was adopted by the district judge on July 13, 2005, plaintiff has failed to present a logical set of facts to support any claim for relief. Consequently, the district court should certify that this appeal is not taken in good faith.
RECOMMENDATION
The district court should find that plaintiff is indigent but certify that his appeal is not taken in good faith. Accordingly, plaintiff's motion to proceed in forma pauperis on appeal should be denied.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).