Opinion
CASE NO. 13-CV-12388
2013-09-27
EDDIE LEE THOMPSON, Plaintiff, v. MOUSA MOHAMMED, and CONNIE KALE, Defendants.
HONORABLE GEORGE CARAM STEEH
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
PROCEED IN FORMA PAUPERIS ON APPEAL AND DENYING
MOTION FOR APPOINTMENT OF COUNSEL (Doc. 31)
In this 42 U.S.C. § 1983 civil rights action, pro se plaintiff Eddie Lee Thompson alleges that defendant doctor, Mousa Mohammed, violated the constitutional rights of Thompson's adult daughter, Kellie Spriggs, by allegedly prescribing her the wrong medications, and otherwise providing negligent medical care, while she was a patient at Lara's House, an adult foster care group home. Thompson also brought § 1983 claims against defendant Connie Kale who was a social worker and case manager at Lara's House while Spriggs was a patient there. On September 4, 2013, this court entered an order granting defendants' motions to dismiss on the grounds that Thompson lacked Article III standing, Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir. 1984), and was otherwise unauthorized to file suit as he was barred from appearing pro se on behalf of his adult daughter. Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002). Now before the court is Thompson's motion to proceed in forma pauperis on appeal and motion for appointment of counsel.
Thompson was allowed to proceed in forma pauperis in the case while it was pending in this district court. Under Federal Rule of Appellate Procedure 24(a)(3)(A), a party who has proceeded in forma pauperis in the district court is allowed to proceed in forma pauperis on appeal unless the district court certifies that the appeal is not taken in good faith. Calihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999). In addition, 28 U.S.C. § 1915(a)(3) provides that an in forma pauperis appeal may not be taken if the district court certifies that the appeal is not taken in "good faith." Where the party seeking to appeal in forma pauperis is not a prisoner, as here, the court evaluates his request to proceed without paying the filing fee under these standards. In determining whether or not the request to appeal is taken in good faith, the court relies on an objective standard, Coopedge v. United States, 369 U.S. 438, 445 (1962), and good faith is "established by the presentation of any issue that is not plainly frivolous." Ellis v. United States, 356 U.S. 674, 674 (1958).
A party seeking to proceed in forma pauperis must file an affidavit setting forth the grounds for the appeal so that the court can assess with an appeal can be taken in good faith. Fed. R. App. P. 24(a)(1)(B)(C); 28 U.S.C. § 1915(a). Thompson has failed to do so here. A district court does not abuse its discretion in denying an in forma pauperis petition that is not accompanied by such a sworn affidavit. Flippin v. Massey, 86 Fed. App'x 896 (6th Cir. 2004). Moreover, it appears that any appeal here would not be taken in good faith as the lawsuit was plainly frivolous. Accordingly,
Thompson's motion to proceed in forma pauperis on appeal hereby is DENIED and his request for the appointment of counsel hereby is DENIED AS MOOT.
IT IS SO ORDERED.
________________________
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 27, 2013, by electronic and/or ordinary mail and
also on Eddie Lee Thompson, 874 Schafer Street,
Flint, MI 48503.