Opinion
No. 13-1155-JDT-egb
07-09-2013
JENA GREGSON SWINDLE, Plaintiff, v. DECATUR COUNTY SHERIFF'S DEPARTMENT, ET AL., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Plaintiff Jena Gregson Swindle, a resident of Parsons, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 on May 14, 2013, accompanied by a motion for leave to proceed in forma pauperis. (Docket Entries 1 & 2.) After Plaintiff filed the correct affidavit (D.E. 4), the Court granted leave to proceed in forma pauperis. (D.E. 5.) In accordance with Administrative Order 2013-05, the assigned U.S. Magistrate Judge is responsible for case management and handling of pretrial matters by determination or by report and recommendation, as appropriate. On June 18, 2013, the Magistrate Judge issued a Report and Recommendation in which he recommended that the case be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (D.E. 6.) Objections to that report and recommendation were due within 14 days. See Fed. R. Civ. P. 72(b)(2). However, Plaintiff has filed no objections.
Plaintiff's complaint consists of one sentence:
On May 11, 2010, I was in a vehicle being shot at by Henderson Co. Sgt Kenneth Thompson and Deputy Jacobi Wright that has caused severe mental damages.(D.E. 1 at 2.) The Magistrate Judge has recommended that the complaint be dismissed prior to service of process because the claim is barred by the one-year statute of limitations; therefore, Plaintiff has failed to state a claim on which relief may be granted. Having reviewed the complaint and the applicable law, the Court agrees with the Magistrate Judge's recommendation and finds that the issuance of a more detailed written opinion is unnecessary. Accordingly, the Court ADOPTS the report and recommendation of the Magistrate Judge and hereby DISMISSES this case for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis, should she seek to do so. 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, she 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. It would be inconsistent for a 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 dismiss this case for failure to state a claim 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, she must also pay the full $455 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 she is specifically instructed to do so, Plaintiff should not send to this Court copies of documents and motions intended for filing in the Sixth Circuit.
The Clerk is directed to prepare a judgment. IT IS SO ORDERED.
____________________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE