Hamilton v. Singleton et al

Filing 68

ORDER denying 66 Motion for Leave to Appeal in forma pauperis. Further, the Clerk is directed to collect the $505 filing fee pursuant to the terms of the Prison Litigation Reform Act. Signed by Honorable Barry A. Bryant on April 29, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

TED HAMILTON
v.

PLAINTIFF
Civil No. 4:13-cv-4038

JAMES SINGLETON; JOAN
MCCLEAN; JOHNNY GODBOLT;
and STEPHEN GLOVER

DEFENDANTS
ORDER

This is a civil rights action filed by Plaintiff Ted Hamilton pursuant to 42 U.S.C. § 1983.
Plaintiff is currently incarcerated in the Arkansas Department of Corrections Wrightsville Unit.
Currently before the Court is Plaintiff’s Motion for Leave to Appeal in Forma Pauperis (“IFP”).
ECF No. 66. The Parties have consented to the jurisdiction of a magistrate judge to conduct any
and all proceedings in this case, including conducting the trial, ordering the entry of a final
judgment, and conducting all post-judgment proceedings. ECF No. 36. Pursuant to this authority,
the Court finds this Motion ready for decision and issues this Order.
On March 28, 2014, the Court denied Plaintiff’s Motion for Partial Summary Judgment and
granted in part and denied in part Defendants’ Motion for Summary Judgment. ECF No. 53. This
Order dismissed Plaintiff’s denial and delay of medical care claims against Defendants McClean,
Godbolt, and Glover and dismissed the same Defendants from this action. The claims against
Defendant Singleton are still pending. ECF No. 53. On April 21, 2014, Plaintiff filed a Notice
of Appeal (ECF No. 65), and Motion for Leave to Appeal IFP (ECF No. 66).
Pursuant to 28 U.S.C. § 1915(a)(3) “[a]n appeal may not be taken in forma pauperis if the

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trial court certifies in writing that it is not taken in good faith.” In this case, the Court only
partially dismissed the claims and Defendants. The claim against Defendant Singleton is still
pending. Pursuant to the terms of Rule 54(b) of the Federal Rules of Civil Procedure, when a case
involves more than one claim, if an order, does not dispose of all claims it is not considered a final
appealable judgment unless the trial court directs that final judgment be entered as to claims that
were dismissed.
Final judgment was not entered pursuant to Rule 54(b) in the order entered in this case.
In other words, the order appealed from does not constitute a final appealable judgment.
Accordingly, any appeal at this stage of the litigation would be frivolous and not taken in good
faith. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Accordingly, Plaintiff’s Motion for Leave to Appeal IFP (ECF No. 66) is DENIED as the
appeal is not taken in good faith, 28 U.S.C. § 1915(a)(3). I further DIRECT the Clerk to collect
the $505 filing fee pursuant to the terms of the Prison Litigation Reform Act. Plaintiff may renew
his Motion for Leave to Appeal IFP with the Court of Appeals for the Eighth Circuit. Fed. R.
App. P. 24(a).
IT IS SO ORDERED this 29th day of April 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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