Houston v. Givens

Filing 35

REPORT AND RECOMMENDATIONS to Deny, re 33 MOTION for Leave to Appeal in forma pauperis filed by Haywood Houston (With instruction to Clerk to send adoption Order and R&R to ADOC, Bus. Mgr. of incarcerated institution). Signed by Magistrate Judge Bert W. Milling, Jr on 4/3/2013. ref. to Judge Granade. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HAYWOOD HOUSTON,
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Plaintiff,
vs.

CIVIL ACTION 11-678-CG-M

GWENDOLYN GIVENS, et al.,
Defendants.

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REPORT AND RECOMMENDATION

Pending before the Court are Plaintiff’s Notice of
Appeal (Doc. 28) and Prisoner Consent Form on Appeal (Doc.
32), which have been construed as a Motion for Leave to
Appeal in forma pauperis (Doc. 34) and referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(3).

For the

reasons set forth below, it is recommended that the Motion
for Leave to Appeal in forma pauperis be denied because the
appeal is frivolous, without arguable merit and not taken
in good faith.
On January 14, 2013, Plaintiff Haywood Houston, an
Alabama prison inmate proceeding pro se in this 42 U.S.C.
§ 1983 action, filed Notice of Appeal (Doc. 28) of the
District Judge’s Judgment and Order adopting the Report and
Recommendation, both dated December 21, 2012 (Doc. 26, 27),
dismissing Plaintiff’s claims of failure to protect,

conspiracy, lack of due process in disciplinary proceedings
and delay in medical care, with prejudice, for failure to
establish a constitutional violation.

The Court construed

the Notice of Appeal and the Prisoner Form on Appeal as a
Motion For Leave to Appeal in forma pauperis (Doc. 34).
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.”

28 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 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 violation
against Defendants with regard to any of his claims,
namely, failure to protect, conspiracy, lack of due process
in disciplinary proceedings or delay in medical care.
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, without arguable merit 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. 45), 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.

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.

Plaintiff has consented to this

method of payment (Doc. 32).
In conclusion, it is recommended that Plaintiff’s
Motion for Leave to Appeal in forma pauperis be denied and
that the District Judge certify in writing that Plaintiff’s
appeal is frivolous, without arguable merit 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 ten
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 3rd day of April, 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE