Davis v. City of Clanton Police Department et al (JOINT ASSIGN)(MAG+)
ORDER: Before the court is Plaintiff Sadaka Davis's 71 Motion for Leave to Appeal in forma pauperis. The motion is due to be denied. Accordingly, and for the reasons stated in the Recommendation of the Magistrate Judge (Doc. 66 ) and in the 10/28/2015 Order adopting the Recommendation in part (Doc. 68 ), Petitioners appeal is without a legal or factual basis, has no substantive merit, and is frivolous for purposes of the IFP motion. Therefore, it is ORDERED that Petitioners motion for leave to appeal in forma pauperis (Doc. 71 ) is DENIED as further set out in the order. Signed by Chief Judge William Keith Watkins on 11/9/2015. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
DANIEL ERIC SMITHERMAN,
CASE NO. 2:14-CV-986-WKW
Before the court is Plaintiff Sadaka Davis’s motion for leave to appeal in forma
pauperis (“IFP”). (Doc. # 71.) The motion is due to be denied.
“An appeal may not be taken in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). In determining whether an
appeal is taken in good faith, the court uses an objective standard to determine whether
the appeal is frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962) (“[A]
[petitioner’s] good faith in this type of case [is] demonstrated when he seeks appellate
review of any issue not frivolous.”). An appeal is “frivolous” when “it has no substantive
merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 1981).1
This case was dismissed as a sanction for Davis’s failure to attend a noticed
deposition that he had agreed to attend after numerous attempts by Defendant to schedule
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
a deposition. (Doc. # 68); Fed. R. Civ. P. 37(d)(3). In his notice of appeal, Davis
challenges the dismissal on grounds that he submitted evidence that he contends
demonstrates the merits of his case, and on grounds that he has a constitutional right to
“receive a deposition.” The case was not dismissed on the merits. Davis does not have a
constitutional right to be deposed by the opposing party, particularly at the opposing
party’s expense, after he failed to attend his deposition, and after the opposing party
attempted numerous times to depose him. (Doc. # 68); see Fed. R. Civ. P. 30(a)(1) (“A
party may, by oral questions, depose any person, including a party, without leave of court
except as provided in Rule 30(a)(2).” (emphasis added)); Fed. R. Civ. P. 30(b)(1) (“A
party who wants to depose a person by oral questions must give reasonable written notice
to every other party.” (emphasis added)).
Accordingly, and for the reasons stated in the Recommendation of the Magistrate
Judge (Doc. # 66) and in the October 28, 2015 Order adopting the Recommendation in
part (Doc. # 68), Petitioner’s appeal is without a legal or factual basis, has no substantive
merit, and is frivolous for purposes of the IFP motion.
Therefore, it is ORDERED that Petitioner’s motion for leave to appeal in forma
pauperis (Doc. # 71) is DENIED.
DONE this 9th day of November, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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