Opinion
No. 3-03-CV-1750-D.
May 31, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Norman Wade Yoes, 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 certify that plaintiff's appeal is not taken in good faith and deny his motion for court records at government expense.
I.
Plaintiff, an inmate in the TDCJ-ID, claims to have knowledge of a methamphetamine distribution ring comprised of various small business owners and private security guards based in Duncanville, Texas. Because of his involvement in the drug ring and his role as an informant against members of the Aryan Brotherhood, two attempts have been made on his life. Plaintiff believes that Barbara Owens, an assistant manager at a 7-11 store in Arlington, Texas, is somehow involved in the plot to kill him. By this suit, plaintiff seeks $25,000 in compensatory damages and an opportunity to speak with federal prosecutors so criminal charges can be filed against the responsible parties.
On February 25, 2005, the magistrate judge recommended that all claims against Owens be dismissed on summary judgment. Yoes v. Owens, 2005 WL 440460 (N.D. Tex. Feb. 25, 2004). Plaintiff timely filed written objections to that recommendation on March 17, 2005. The district judge overruled plaintiff's objections and adopted the magistrate judge's recommendation in its entirety. A final judgment was entered on March 29, 2005.
Plaintiff's claims against Mike Ayres, Robbie Waree, Gilbert Smith, Catherine Krans, and Taylor Young were dismissed for failure to effect service in a timely manner.
Plaintiff filed a pro se notice of appeal on April 6, 2005. 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 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. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). See also Hise v. U.S. Dep't of Justice, 2005 WL 840211 at *1 (N.D. Tex. Apr. 12, 2005) (Kaplan, J.), rec. adopted, 2005 WL 1215204 (N.D. Tex. May 18, 2005) (Solis, J.).
A.
The court initially observes that plaintiff paid the statutory filing fee after he was denied leave to prosecute this action in forma pauperis. However, even if plaintiff lacks the financial resources to pay the costs of an appeal, such an appeal is patently frivolous. For the reasons set forth in the report and recommendation dated February 25, 2005, which was adopted by the district judge on March 28, 2005, plaintiff has failed to show that Owens is a "state actor" or conspired with others to interfere with his civil rights. Yoes, 2005 WL 440460 at *3. Plaintiff has not presented 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.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 certify that plaintiff's appeal is not taken in good faith. Accordingly, his motion to proceed in forma pauperis on appeal and motion for court records at government expense should be denied.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will 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).