Summary
dismissing complaint because causes of action under § 1983 were time-barred
Summary of this case from Williams v. City of MemphisOpinion
No. 13-2373-JDT-tmp
03-25-2014
RAYNELL WILLIAMS, Plaintiff, v. BILL OLDHAM, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
AND
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
On March 7, 2014, Magistrate Tu M. Pham issued a report and recommendation on the pro se complaint that was filed in this matter [DE# 7]. Magistrate Judge Pham has recommended the sua sponte dismissal of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii). No timely objections have been filed in this court, although on March 21, 2014, Plaintiff filed an appeal of the Magistrate Judge's order to the Sixth Circuit.
Magistrate Judge Pham's report and recommendation is ADOPTED in its entirety, and this matter is hereby DISMISSED with prejudice.
The court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis. 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, he 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 The same considerations that lead the court to dismiss this case also compel the conclusion that an appeal is not be taken in good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that an appeal in this matter by Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore, DENIED. Accordingly, Plaintiff must pay the full $505 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.
Unless he is specifically instructed to do so, Plaintiff should not send to this court copies of motions intended for filing in the Sixth Circuit.
The clerk is directed to enter judgment accordingly. IT IS SO ORDERED.
________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE