Floyd v. Northeast Florida Health Services, Inc.

Filing 59

ORDER denying 56 Motion for leave to appeal in forma pauperis/affidavit of indigency; The Court hereby CERTIFIES that Plaintiff's appeal is not taken in good faith. Adopting Report and Recommendations re 57 Report and Recommendations. Signed by Judge Carlos E. Mendoza on 11/12/2014. (DJD)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION EUNICE DARLENE FLOYD, Plaintiff, v. Case No: 6:13-cv-655-Orl-41DAB NORTHEAST FLORIDA HEALTH SERVICES, INC., Defendant. / ORDER THIS CAUSE is before the Court on Plaintiff’s Motion for Permission to Appeal in Forma Pauperis (Doc. 56), filed on September 29, 2014. United States Magistrate Judge David A. Baker recommends that Plaintiff’s Motion be denied because Plaintiff’s underlying claims were timebarred. (Report & Recommendation, Doc. 57, at 3). Plaintiff Objected to the Report and Recommendation. (Doc. 58). Plaintiff alleges that her appeal is taken in good faith because she seeks to challenge 42 U.S.C. § 2000e-5(f)(1) for failing to “address a method [of] computing time” in relation to Federal Rule of Civil Procedure 6. (Id. ¶ 3). After an independent de novo review of the record in this matter, the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation. “An 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). “Good faith is demonstrated where an appeal seeks appellate review of any issue not frivolous. Whether an issue is frivolous turns on the existence of a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.” Page 1 of 3 Schmitt v. U.S. Office of Pers. Mgmt., No. 8:09-cv-943-T-27EAJ, 2009 WL 3417866, at *2 (M.D. Fla. Oct. 19, 2009) (quotations omitted). Plaintiff does not have a legal basis to challenge § 2000e-5. Case law in the Eleventh Circuit forecloses Plaintiff’s arguments. Section 2000e-5 does address the method of computing time. See Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339 (11th Cir. 1999) (holding that “notify” is the key word in § 2000e-5 and that the ninety day period begins to run when the aggrieved party is notified of the right to sue). Additionally, the Eleventh Circuit has rejected the argument that Federal Rule of Civil Procedure 6 applies to § 2000e-5 to extend the ninety day limitation. See Norris v. Fla. Dep’t of Health & Rehabilitative Servs., 730 F.2d 682, 683 (11th Cir. 1984) (holding that Rule 6 does not add three days to the statutory filing period under § 2000e-5); Suarez v. Little Havana Activities, 721 F.2d 338, 340 (11th Cir. 1983) (same). Plaintiff’s Complaint was not timely filed, therefore any appeal of this Court’s decision, either on procedural or substantive grounds, would be frivolous. Accordingly, the Court will not certify that Plaintiff’s appeal is taken in good faith. In accordance with the foregoing, it is ORDERED and ADJUDGED as follows: 1. The Report and Recommendation (Doc. 57) is ADOPTED and CONFIRMED and made a part of this Order. 2. Pursuant to 28 U.S.C. § 1915(a)(3), the Court hereby CERTIFIES that Plaintiff’s appeal is not taken in good faith. 3. Plaintiff’s Motion for Permission to Appeal in Forma Pauperis (Doc. 56) is DENIED. Page 2 of 3 DONE and ORDERED in Orlando, Florida on November 12, 2014. Copies furnished to: Counsel of Record Unrepresented Party Page 3 of 3

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