Vega v. State of Florida et al

Filing 70

OPINION AND ORDER denying re: 65 MOTION for leave to appeal in forma pauperis/affidavit of indigency. Signed by Judge Sheri Polster Chappell on 2/8/2018. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WALTER VEGA,
Plaintiff,
v.

Case No: 2:16-cv-84-FtM-38CM

STATE OF FLORIDA, FRED R.
KAHLE, CITY OF FORT MYERS,
JOHN TOBECK, ALLIGATOR
TOWING COMPANY and UNION
CORRECTIONAL INSTITUTION
MEDICAL DEPT.,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Plaintiff’s Amended Notice of Appeal (Doc.
64) filed January 2, 2018. Plaintiff seeks to appeal the Court’s endorsed Order entered
on December 4, 2017 (Doc. 59), which Plaintiff characterizes as a “final judgment.” Id.
Plaintiff accompanied his Amended Notice of Appeal with a Motion for Permission to
Appeal In Forma Pauperis (Doc. 65).
To be appealable, an order must be final. 28 U.S.C. § 1291. AA final decision is
>one which ends the litigation on the merits and leaves nothing for the court to do but

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execute the judgment.=@ CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327
(11th Cir. 2000) (citations omitted). Otherwise, it must fall within one of the specific
classes of interlocutory orders. 28 U.S.C. § 1292.
The Order Plaintiff seeks to appeal is not a final order or otherwise subject to
interlocutory appeal.

The December 6, 2017 Order (Doc. 59) that Plaintiff seeks to

challenge was entered after the Court entered judgment.2 The challenged Endorsed
Order granted in part, and denied in part, Plaintiff’s Motion to Withdraw Motion for Waiver
of Rights. More specifically, the challenged Endorsed Order granted Plaintiff’s motion to
withdraw his motion to voluntarily dismiss the action, but found Plaintiff’s request to stay
the case as moot because of the Court’s earlier dismissal.
Thus, under Rule 24(a) of the Federal Rules of Appellate Procedure, Petitioner’s
appeal is not taken in good faith. As a result, Plaintiff will be required to pay the $505.00
appellate filing and docketing fees. Because the Court has certified that this appeal is not
taken in good faith, any request to proceed in forma pauperis should be sent directly to
the Eleventh Circuit Court of Appeals. See Fed. R. App. P. 24(a) (5).
Accordingly, it is now
ORDERED:
Plaintiff Motion for Leave to Appeal In Forma Pauperis (Doc. 65) is DENIED.

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The Court dismissed this action under 28 U.S.C. § 1915(e) on April 21, 2017 (Doc.
34). Judgment was entered on April 24, 2017 (Doc. 35). Plaintiff filed a notice of
appeal on May 11, 2017 (Doc. 37). On January 4, 2018, the United States Court of
Appeals for the Eleventh Circuit denied Plaintiff’s motion to proceed on appeal in forma
pauperis and dismissed his appeal (Doc. 67).

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DONE and ORDERED in Fort Myers, Florida this 8th day of February, 2018.

SA: FTMP-1
Copies: All Parties of Record

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