Rowan v. Cent. Library

Full title: BRENT A. ROWAN, Plaintiff, v. CENTRAL LIBRARY, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Date published: Jul 30, 2014

No. 2:13-cv-2637-JDT-cgc (W.D. Tenn. Jul. 30, 2014)

Opinion

No. 2:13-cv-2637-JDT-cgc

07-30-2014

BRENT A. ROWAN, Plaintiff, v. CENTRAL LIBRARY, Defendant.

CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

On August 15, 2013, Plaintiff Brent A. Rowan, a resident of Memphis, Tennessee, filed a pro se complaint captioned "Complaint for the Violations of Civil Rights Under 42 U.S.C. § 1983" against Central Library. (Docket Entry ("D.E.") 1.) Plaintiff neglected to pay the $400.00 civil filing fee or submit a properly completed application to proceed in forma pauperis. On August 19, 2013, the undersigned entered an Order directing Plaintiff to file a non prisoner in forma pauperis affidavit or pay the civil filing fee within thirty (30) days after the date of the Order. (D.E. #2). Plaintiff was warned that failure to comply in a timely manner would result in dismissal of this action without further notice, pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.

As Plaintiff has neither submitted a properly completed affidavit nor paid the filing fee, it is RECOMMENDED that the Court DISMISS the complaint for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b).

The Court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis, should he seek to do so. The United States Court of Appeals for the Sixth Circuit requires that all district courts in the circuit determine, in all cases where the appellant seeks to proceed in forma pauperis, whether the appeal would be frivolous. Twenty-eight U.S.C. § 1915(a)(3) provides that "[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."

The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test under 28 U.S.C. § 1915(a) 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 district 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 recommend dismissal of this case for failure to prosecute also compel the conclusion that an appeal would not be taken in good faith. It is therefore RECOMMENDED that the Court CERTIFIFY, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff would not be taken in good faith and Plaintiff may not proceed on appeal in forma pauperis. Signed this 30^th day of July, 2014.

s/ Charmiane G. Claxton

CHARMIANE G. CLAXTON

UNITED STATES MAGISTRATE JUDGE

ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28 U.S.C. § 636(b)(1)(C). FAILURE TO FILE SAID OBJECTIONS OR EXCEPTIONS WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND ANY FURTHER APPEAL.