Opinion
No. 3-02-CV-0270-M.
October 21, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Willie Frank Williams, Jr., appearing pro se, has filed a motion to proceed in forma pauperis on appeal and a motion for court records at government expense. 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. Plaintiff's motion for court records at government expense should be denied.
I.
On February 8, 2002, plaintiff filed a civil rights action against various state and local parole officials challenging the constitutionality of the Texas Sex Offender Registration Act ("SORA"), Tex. Code Crim. Proc. Ann. art. 62.01, et seq., and the sex-offender conditions of his mandatory supervision. In his most recent complaint, plaintiff alleged that he was improperly classified as a sex offender in violation of his rights to procedural and substantive due process, equal protection, and privacy under the Fourteenth Amendment to the United States Constitution. Plaintiff also sued for invasion of privacy, slander, and libel under Texas law. As relief, plaintiff sought money damages against defendants, declaratory relief, and a permanent injunction prohibiting the State of Texas from classifying him, or any other person who does not have a sex-related conviction or adjudication, as a sex offender.
At plaintiff's request, the court appointed counsel to represent him in this case. The parties then filed cross-motions for summary judgment. By recommendation dated June 18, 2004, the magistrate judge granted plaintiff's motion for summary judgment with respect to his procedural due process claim and corresponding request for declaratory relief. Defendants' cross-motion for summary judgment was granted with respect to all other constitutional claims, their qualified immunity defense, and plaintiff's request for a permanent injunction. The magistrate judge also recommended that plaintiff's state claims be dismissed without prejudice. Williams v. Ballard, 2004 WL 1499457 (N.D. Tex. Jun. 18, 2004). Plaintiff timely objected to this recommendation and sought leave to file an amended complaint. On September 30, 2004, the district judge overruled plaintiff's objections and adopted the magistrate judge's recommendation in its entirety. Williams v. Ballard, 2004 WL 2203250 (N.D. Tex. Sept. 30, 2004). The court also denied plaintiff's motion for leave to amend.
While these objections were pending, plaintiff fired his court-appointed attorney and elected to proceed pro se.
Plaintiff filed a pro se notice of appeal on October 15, 2004. In conjunction with that notice, plaintiff seeks leave to proceed in forma pauperis on appeal and requests certain court records at government expense.
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 and costs or security therefor, by a person who makes an affidavit that he is unable to pay such costs 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).
A.
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 18, 2004, which was adopted by the district judge on September 30, 2004, plaintiff failed to establish a claim under the equal protection clause or a constitutional right to privacy. Williams, 2004 WL 1499457 at *7. Although the court determined that the conditions requiring plaintiff to register as a sex-offender and participate in sex-offender counseling violated his right to procedural due process, that right was not clearly established when plaintiff was released to mandatory supervision in 1998. Consequently, the court granted summary judgment in favor of defendants on their qualified immunity defense. Id. at *9. The court also denied plaintiff's request for injunctive relief because his mandatory supervision was revoked seven months before this lawsuit was filed. At no time during the pendency of this action was plaintiff under the supervision of state parole authorities or required to participate in sex-offender counseling. Id. Having dismissed plaintiff's federal claims, the court declined to exercise supplemental jurisdiction over his state law claims for invasion of privacy, libel, and slander.
Plaintiff has failed to present an arguable issue on the merits with respect to any of his dismissed claims. Consequently, the district court should certify that this appeal is not taken in good faith.
This case does present one significant legal issue — whether the conditions of plaintiff's mandatory supervision requiring him to register as a sex-offender and participate in sex-offender counseling both stigmatized plaintiff and infringed on a constitutionally protected liberty interest. In fact, the court entered a declaratory judgment in favor of plaintiff on this claim. Williams, 2004 WL 1499457 at *11 (declaring that "the registration and public notification requirements of SORA are unconstitutional as applied to plaintiff and to other persons who have no reportable conviction or adjudication of an enumerated sex-related offense and who have not been given notice or an opportunity to challenge the requirements of the statute"). Because plaintiff does not challenge that aspect of the court's ruling, the significance of that issue is not relevant to the determination whether his appeal is taken in good faith.
B.
Nor is plaintiff entitled to court records at government expense. Under federal law:
Fees for transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or circuit judge certifies that the appeal is not frivolous (but presents a substantial question).28 U.S.C. § 753(f) (emphasis added). If the court certifies that plaintiff's appeal is frivolous and not taken in good faith, his request for records, transcripts, and other court documents also should be denied. See Hoover v. Lindsey, 2003 WL 22014567 at *1 (5th Cir. Aug. 26, 2003), citing Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985).
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 and motion for court records at government expense should be denied.
A copy of this recommendation shall be sent to plaintiff and all counsel of record. Any party may file written objections to the recommendation by November 4, 2004. The failure to file written objections shall 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).