Tate v. Rockford

Filing 38

REPORT AND RECOMMENDATIONS re 37 to Deny the MOTION for Leave to Appeal in forma pauperis filed by Lee Curtis Tate, and the Court directs the Comm. of ADOC to withdraw 20% of the prisoner's account to the USDC monthly to pay the appeal filing fee, as further sets out. Signed by Magistrate Judge Bert W. Milling, Jr on 5/17/2011. (copy to Appellant) (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEE CURTIS TATE,
Plaintiff,
vs.
OFFICER ROCKFORD, et al.,
Defendants.

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CIVIL ACTION 09-0268-WS-M

REPORT AND RECOMMENDATION

Pending before the Court is Plaintiff’s Notice of Appeal to
the Eleventh Circuit Court of Appeals from the Judgment of the
District Court (Doc. 34) and Affidavit Accompanying Motion for
Permission to Appeal In Forma Pauperis (Doc. 37).

For the

reasons set forth below, it is recommended that the Motion for
Permission to Appeal In Forma Pauperis be denied because the
appeal is frivolous and not taken in good faith.
On April 11, 2011, Plaintiff Lee Curtis Tate, an Alabama
prison inmate proceeding pro se in this 42 U.S.C. § 1983 action,
filed a Notice of Appeal (Doc. 34) of the District Judge’s Order
dated March 15, 2011 (Doc. 32), adopting the Report and
Recommendation (Doc. 29), dismissing the excessive force and due
process claims against Defendants Rothchild, Lane and English,
with prejudice, for failure to establish a constitutional
violation.

Judgment was also entered on March 15, 2011 (Doc.

33) and on May 9, 2011, Plaintiff filed his Affidavit
Accompanying Motion for Permission to Appeal In Forma Pauperis
(Doc. 37).
Notwithstanding a finding of economic eligibility, “[a]n
appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.”

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U.S.C. § 1915(a)(3); see also Busch v. County of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999).

An appeal is not taken in

good faith if it is plainly frivolous.

United States v.

Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997); DeSantis v.
United Technologies Corp., 15 F.Supp.2d 1285, 1289 (M.D. Fla.
1998)(appeal is not taken in good faith when it fails to “seek[]
appellate review of any issue that is not frivolous”), aff’d,
193 F.3d 522 (11th Cir. 1999); United States v. Durham, 130
F.Supp. 445 (D.C. 1955)(“good faith” means the existence of a
substantial question or one which has merit and is not
frivolous); Sejeck v. Singer Mfg. Co., 113 F.Supp. 281 (D.C.
N.J. 1953) (“in good faith” means that points on which appeal is
taken are reasonably arguable); United States v. Gicinto, 114
F.Supp. 929 (W.D. Mo. 1953) (the application should be denied if
the trial court is of the opinion that the appeal is frivolous,
and without merit, and a futile proceeding); see generally
Napier V. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (action
is frivolous for § 1915 purposes if it is without arguable merit

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either in law or in fact); Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001) (same).

This Court, in its Order adopting the

thorough Report and Recommendation, after a de novo
determinations of those portions of the Recommendation to which
objection was made, found that Plaintiff had failed to come
forth with sufficient evidence to establish a constitutional
excessive force or due process violation against Defendants
Rothchild, Lane and English.

Furthermore, Plaintiff has not

claimed or pointed out in what way the Order is in error.
Therefore, the Court finds that the appeal is frivolous and not
taken in good faith and that the request to appeal in forma
pauperis is due to be denied.
Notwithstanding Plaintiff’s indigent status or the denial
of permission to proceed in forma pauperis, because Plaintiff is
a prisoner, 28 U.S.C. § 1915 (as amended by the Prison
Litigation Reform Act) requires payment of the full amount of
the filing fee.

After a review of Plaintiff’s prisoner account

statement for the most recent twelve-month period (Doc. 37), the
Court DIRECTS the Commissioner of the Alabama Department of
Corrections or his designee to withdraw twenty percent of the
preceding month’s income credited to the prisoner’s inmate
account and to remit that amount to the District Court Clerk
each time the amount in the account exceeds $10.00 until the
total filing fee of $455.00 has been paid in full.

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These

payments shall clearly identify Plaintiff’s name and the case
number assigned to this action, and shall be paid by check made
payable to “Clerk, U. S. District Court.”

Once adopted, the

Clerk is DIRECTED to send the Commissioner of the Alabama
Department of Corrections and the business manager of the
institution where Plaintiff is incarcerated a copy of this
Report and Recommendation and the District Judge’s Order
adopting it.
In conclusion, it is recommended that Plaintiff’s Motion
for Permission to Appeal In Forma Pauperis be denied and that
the District Judge certify in writing that Plaintiff’s appeal is
frivolous and not taken in good faith.

Since this

recommendation is made after a referral pursuant to 28 U.S.C.
§ 636(b)(3), Plaintiff does not have the opportunity to file an
objection.

Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th

Cir. 1998)(“Section 636(b)(3) does not provide a party with then
days to file written objections with the district court.”).

The

Clerk is therefore DIRECTED to refer this Report and
Recommendation to the District Judge without the necessity of a
waiting period.
DONE this 17th day of May, 2011.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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