Avery v. Ferguson et al

Filing 119

ORDER ADOPTING REPORT AND RECOMMENDATIONS 116 and denying 112 Motion for Leave to Appeal in forma pauperis filed by Robert W. Avery. The Clerk of Court is directed to collect the appellate filing fee pursuant to the Prison Litigation Reform Act. Signed by Honorable Jimm Larry Hendren on July 7, 2009. (jn)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION ROBERT W. AVERY v. Civil No. 07-5111 PLAINTIFF

SHERIFF KEITH FERGUSON; MAJOR DRAKE; DETECTIVE CHRIS SPARKS; DETECTIVE ROBERT HOLLY; SGT. TOMLIN; DEPUTY CARLTON; SGT. JARED CRABTREE; NATHAN ATCHISON; TRAVIS NEWELL; HAROLD GAGE; RICK HOLLAND; JOSH CHAPMAN; RICHARD CONNER; CHARLES ROBBINS; ERIC WARZECHA; TIM SRADER; WADE PORTER; CAPTAIN JONES; and CAPTAIN HUNTER PETRAY ORDER

DEFENDANTS

Now on this 7th day of July, 2009, come on for consideration the following: * plaintiff's Motion To Obtain Leave To Appeal In Forma

Pauperis (document #112); * the Report And Recommendation Of The Magistrate Judge

(document #116)("R&R"); and * plaintiff's Objection To Report And Recommendation Of

The Magistrate Judge Of 04/13/09 (document #117); and the Court, being well and sufficiently advised, finds and orders as follows: 1. After some, but fewer than all, of his claims in this

case were dismissed, plaintiff filed a Notice Of Appeal and moved for leave to appeal in forma pauperis. The Magistrate Judge

reported that no final appealable judgment had been entered and -given that an appeal may not be taken in forma pauperis unless it is taken in good faith -- recommended that plaintiff's motion be denied. The Magistrate Judge further recommended that the Clerk

of Court be directed to collect the appellate filing fee pursuant to the Prison Litigation Reform Act ("PLRA"). 2. Plaintiff objects that he was acting in good faith,

"with the firm belief that the correct action was being taken," and that "if the Motion for Leave to Appeal in IFP must be dismissed the Plaintiff asks to be excussed [sic] from the

collection of the $455 filing fee."

He further states that "if

allowed to proceed that sufficient evidence would be presented by the Plaintiff in order to support the claims which the Plaintiff sought to appeal." 3. These objections, which are without merit, demonstrate

two misunderstandings of the law by plaintiff. First, plaintiff's contention that he acted "with the firm belief that the correct action was being taken" suggests that he misunderstands the legal concept of "good faith" in PLRA cases. Plaintiff may have had subjective good faith, i.e., he may really have believed he was doing the right thing. But bad faith "in the

more common legal meaning of the term . . . means merely to sue on the basis of a frivolous claim, which is to say a claim that no reasonable person could suppose to have any merit." Lee v.

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Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000).

Pursuant to

F.R.C.P. 54(b), disposition of fewer than all claims in a multiclaim case does not result in a final order unless the Court specifically directs. That did not happen in this case. Courts

of appeal -- with certain narrow exceptions -- have jurisdiction only over appeals from final orders, 28 U.S.C. § 1291-1292. Given this, no reasonable person could suppose the appeal filed by plaintiff to have merit. The result is a finding that the appeal

is not taken in objective good faith. Second, plaintiff appears to labor under the notion that if he simply dismisses his notice of appeal, he will not be liable for the filing fee. prisoners That is incorrect, "because the PLRA makes for their filing fees the moment the

responsible

prisoner brings a civil action or files an appeal." 110 F.3d 528, 529 (8th Cir. 1997).

In re Tyler,

Even if the appeal is

dismissed, plaintiff will still be responsible for the full filing fee. IT IS THEREFORE ORDERED that the Report And Recommendation Of The Magistrate Judge (document #116) is adopted in toto, and plaintiff's Objection To Report And Recommendation Of The

Magistrate Judge Of 04/13/09 (document #117) is overruled. IT IS FURTHER ORDERED that plaintiff's Motion To Obtain Leave To Appeal In Forma Pauperis (document #112) is denied, and the

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Clerk of Court is directed to collect the appellate filing fee from plaintiff pursuant to the Prison Litigation Reform Act. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE

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