Denham v. Stinson

Filing 13

REPORT AND RECOMMENDATIONS recommending 12 MOTION for Leave to Appeal in forma pauperis filed by Billy Joe Denham, Jr. be denied as appeal is not taken in good faith. Objections to R&R due by 3/11/2010. Signed by Honorable Barry A. Bryant on February 22, 2010. (cap)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION B ILLY JOE DENHAM, JR. v. DAVID STINSON, Narcotics In v estigato r, Howard County, A r k an sas C iv il No. 4:09-cv-04094 PLAINTIFF

DEFENDANT

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h is civil rights action was filed by the Plaintiff, Billy Joe Denham, Jr., pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2007), the Honorable Harry F. B arn es, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. Before the Court is Plaintiff's motion for leave to proceed in forma p a u p eris on appeal. Discussion P la in tiff filed this case on August 27, 2009. Plaintiff filed a motion to proceed in forma p a u p e r is . Plaintiff asserted the Defendant, David Stinson, a narcotics investigator, in Howard County, A rk a n s a s , seized Plaintiff's cell phone during a traffic stop. Plaintiff was arrested and incarcerated a t the Howard County Jail in Nashville, Arkansas. When Plaintiff was transferred to the Hempstead C o u n ty Detention Facility, he maintains his cell phone was not transferred with him. On October 1 9 , 2009, a report and recommendation (Doc. 5) was entered recommending denial of the request to p ro c e e d in forma pauperis and dismissal of the complaint on the grounds the claims asserted were friv o lo u s and failed to state claims upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). The re p o rt and recommendation was adopted (Doc. 7) on November 9, 2009, and the case dismissed.

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On November 10, 2009, Plaintiff filed a notice of appeal (Doc. 8). Plaintiff failed to submit th e appellate filing fee or an application to proceed in forma pauperis with his notice of appeal. Plaintiff was given until January 25, 2010, to either submit the in forma pauperis application or pay th e filing fee. On January 21, 2010, Plaintiff filed a motion for leave to proceed in forma pauperis o n appeal (Doc. 12). Pursuant to 28 U.S.C. § 1915(a)(3) "[a]n appeal may not be taken in forma pauperis if the tria l court certifies in writing that it is not taken in good faith." As all claims were clearly frivolous, a n y appeal would not be taken in good faith. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Conclusion I therefore recommend that the motion for leave to appeal (Doc. 12) be denied as the appeal is not taken in good faith, 28 U.S.C. § 1915(a)(3). I further recommend that the clerk be directed to c o lle c t the $455 filing fee pursuant to the terms of the Prison Litigation Reform Act. Plaintiff may, o f course, renew his motion for leave to appeal IFP with the Court of Appeals for the Eighth Circuit. Fed. R. App. P. 24(a). Plaintiff has fourteen (14) days from receipt of this report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections m a y result in waiver of the right to appeal questions of fact. Plaintiff is reminded that o b jectio n s must be both timely and specific to trigger de novo review by the district court. D A T E D this 22nd day of February 2010. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

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