Porter v. The City of Port Orange et al

Filing 112

ORDER denying 107 Motion for leave to appeal in forma pauperis/affidavit of indigency; adopting 109 Report and Recommendations.; denying 110 Motion. Signed by Judge Roy B. Dalton, Jr. on 3/23/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HOWARD PORTER
Plaintiff,
v.

Case No. 6:15-cv-1715-Orl-37DCI

WESH 2, BAY NEWS 9, MY NEWS 13,
WKMG TV LOCAL 6, TRAVELL
EILAND, SHAUN CHAIYBHAT,
BLAINE TOLISON, SAUL SENZ, LACY
MCLAUGHLIN, and KATIE
KURSTAIN,
Defendants.
ORDER
This cause is before the Court on Plaintiff’s motion for leave to appeal in forma
pauperis (Doc. 107), which U.S. Magistrate Daniel C. Irick recommends that the Court
deny (Doc. 109). Plaintiff objected to the Report and Recommendation (Doc. 111) and also
sought an extension of time to file an appeal (Doc. 110). For the reasons set forth below,
Plaintiff’s motions are due to be denied and the Report and Recommendation is due to
be adopted.
I.

PROCEDURAL HISTORY

On January 27, 2017, the Court dismissed Plaintiff’s third amended complaint
(Doc. 23 (“TAC”)) with prejudice on the grounds that: (1) the TAC was a shotgun
pleading; and (2) Plaintiff failed to sufficiently allege the citizenship of either himself or
Defendants despite repeated direction, thereby rendering the Court unable to exercise

diversity jurisdiction. (Doc. 105 (“Dismissal Order”).) Thereafter, Plaintiff filed a notice
of appeal (see Doc. 106 (“Notice”)) and sought leave to appeal the Dismissal Order in
forma pauperis (Doc. 107 (“IFP Motion”)). The Undersigned referred the IFP Motion to
U.S. Magistrate Judge Daniel C. Irick for a Report and Recommendation (“R&R”).
Magistrate Judge Irick issued an R&R on March 3, 2017. (Doc. 109.) Plaintiff timely
objected. (Doc. 111 (“Objection”).)
In the interim, Plaintiff filed a “Motion for Permission to Appeal” (Doc. 110), to
which Defendants did not respond. Upon examination, the Court construes the motion
as a request for an extension of time in which to file an appeal (“Extension Motion”).
II.
A.

STANDARD OF REVIEW

Report and Recommendation
When a party objects to a magistrate judge’s findings, the district court must

“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990).
B.

Notice of Appeal
Generally, a notice of appeal must be filed within thirty days after the entry of the

order appealed from. Fed. R. App. P. 4(a)(1)(A). But a district court may extend the time

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to file a notice of appeal if: (1) a party moves for an extension no later than thirty days
after the time prescribed in Rule 4(a) expires; and (2) the movant shows excusable neglect
or good cause. Fed. R. App. P. 4(a)(5)(A). If such a motion is filed after the expiration of
the time allotted in Rule 4(a)(1), the movant must give notice to the other parties.
Fed. R. App. P. 4(a)(5)(B).
III.

ANALYSIS

In his Notice, Plaintiff argues that: (1) the TAC sufficiently alleges diversity
jurisdiction; and (2) the TAC is not a shotgun pleading (“Appeal Issues”). 1 (Doc. 106.)
On referral, Magistrate Judge Irick recommends that the Court deny the IFP Motion
because it is not taken in good faith. (Doc. 109, p. 2.) Specifically, Magistrate Judge Irick
determined that the Appeal Issues are frivolous, as the Notice fails to demonstrate that
the bases for dismissal were erroneous. (Id.) In his Objection, Plaintiff merely regurgitates
the Appeal Issues. (See Doc. 111.)
“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) (italics added); see also
Fed. R. App. P. 24(a)(3). “Whether an appeal is taken in good faith is a matter within the
discretion of the trial court.” Busch v. Cty. of Volusia, 189 F.R.D. 687, 692 (M.D. Fla. 1999)
(citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331 (1948)). In this context, good

While Plaintiff raises a third issue in his Notice regarding a 42 U.S.C. § 1983 claim,
such claim was not asserted in the TAC (see Doc. 23), nor did the Court address the merits
of any of Plaintiff’s claims in the Dismissal Order (see Doc. 105). Hence this issue is
without merit.
1

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faith must be judged by an objective standard. Id. at 691. A party does not proceed in
good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United
States, 369 U.S. 438, 445 (1962). And a claim or argument is frivolous when it appears that
the factual allegations are clearly baseless or that the legal theories are indisputably
meritless. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392,
393 (11th Cir. 1993).
Upon de novo review, the Court finds that Plaintiff’s appeal was not taken in good
faith, as the Appeal Issues are frivolous and without arguable factual or legal merit. The
scant authority cited in Plaintiff’s Notice, and reiterated in his Objection, does not compel
a contrary conclusion. Hence the Court finds that the Objection is due to be overruled
and the R&R is due to be adopted in its entirety.
As a final matter, the Court finds that the Extension Motion is due to be denied.
Although Plaintiff filed the Extension Motion within the time period prescribed under
Federal Rule of Appellate Procedure 4(a)(5) and represented that he provided the
requisite notice (see Doc. 110, pp. 2–3), such an extension is unwarranted here given the
Court’s finding that Plaintiff’s appeal is frivolous. Moreover, Plaintiff has failed to set
forth excusable neglect or good cause meriting such relief. Indeed, Plaintiff’s contention
that he anticipated receiving the Dismissal Order by mail is unavailing, as he receives
email notifications of Court filings with a link to view such filings (see Doc. 63).

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IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that:
1.

Plaintiff’s Objection to U.S. Magistrate Judge Daniel C. Irick’s Report and
Recommendation (Doc. 111) is OVERRULED.

2.

U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation
(Doc. 109) is ADOPTED, CONFIRMED, and made a part of this Order.

3.

The Undersigned CERTIFIES that Plaintiff’s appeal is not taken in good
faith.

4.

Plaintiff’s Motion for Permission to Appeal (Doc. 110), which the Court
construes as a motion for extension of time to file an appeal, is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 23, 2017.

Copies:
Pro Se Parties
Counsel of Record

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