Mitchell v. North Carolina Medical Board et al

Filing 43

ORDER denying 40 Motion for leave to appeal in forma pauperis/affidavit of indigency; adopting 42 Report and Recommendations.. Signed by Judge Roy B. Dalton, Jr. on 3/20/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PAUL A. MITCHELL,
Plaintiff,
v.

Case No. 6:16-cv-1648-Orl-37DCI

NORTH CAROLINA MEDICAL
BOARD; PATRICK BAESTRIERI;
SARAH EARLY; KAREN MCGOVERN;
CHERYL HARA; ASHLEY M. KLEIN;
SADZI OLIVA; and DANIEL
A. KELBER,
Defendants.
_____________________________________
ORDER
This cause is before the Court on Plaintiff’s motion for leave to appeal in forma
pauperis (Doc. 40), which U.S. Magistrate Judge Daniel C. Irick recommends that the Court
deny (Doc. 42). For the reasons set forth below, the Court agrees.
I.

PROCEDURAL HISTORY

The instant action has been plagued by fantastic allegations of a conspiracy—
between Defendants, court staff, and various judges—to deprive Plaintiff of his medical
license and his day in court. (See generally Doc. 42.) In pursuing these accusations, Plaintiff
has repeatedly violated the Federal Rules of Civil Procedure, the Local Rules, and the
Court’s Orders—despite numerous warnings. (See generally Doc. 35.) On January 20, 2017,
the Court gave Plaintiff a final opportunity to explain his disobedience at a show cause
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hearing (“Hearing”). (See Doc. 33.) Instead, Plaintiff persisted in his defiance, purporting
to advise the Court of its inability to continue with the proceeding due to a recently filed
motion for disqualification, which, unsurprisingly, was premised on further
conspiratorial allegations. (See Doc. 35, pp. 5–6; see also Doc. 31 (“Disqualification
Motion”).)
On January 25, 2017, the Court issued an Order denying the Disqualification
Motion as factually unfounded. (Doc. 35 (“January 25 Order”).) In the same Order, the
Court dismissed Plaintiff’s action with prejudice based on its findings that: (1) Plaintiff
had engaged in a clear pattern of willful conduct; and (2) lesser sanctions would not be
corrective—particularly in view of Plaintiff’s continued contumacious conduct at the
Hearing. (Id. at 5–7.) Thereafter, Plaintiff sought leave to appeal the January 25 Order in
forma pauperis. (Doc. 40 (“Motion to Appeal IFP”).)
II.

STANDARDS

“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
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
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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). Stated another way, an in forma
pauperis action is frivolous and, thus, not brought in good faith, if it is “without arguable
merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (discussing
§ 1915(e)(2)(B)).
III.

DISCUSSION & CONCLUSION

On February 28, 2017, U.S. Magistrate Judge Daniel C. Irick issued a Report and
Recommendation finding that the assignments of error identified in Plaintiff’s Motion to
Appeal IFP are frivolous and without arguable factual or legal merit. (Doc. 42 (“R&R”).)
As such, Magistrate Judge Irick: (1) certifies that Plaintiff’s claims are baseless; and
(2) recommends that the Court deny Plaintiff’s Motion to Appeal IFP. (Id. at 11.)
In the absence of objections, the Court has reviewed the R&R for clear error. Wiand
v.

Wells

Fargo

Bank,

N.A.,

No. 8:12-cv-557-T-27EAJ,

2016 WL 355490,

at

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(M.D. Fla. Jan. 28, 2016); see also Marcort v. Prem, Inc., 208 F. App’x 781, 784
(11th Cir. 2006). Finding none, the Court agrees with Magistrate Judge Irick’s
recommendation and certifies that Plaintiff’s appeal is not taken in good faith. Indeed, to
quote the R&R, “[t]o allow such an appeal would be to waste the limited resources of the
federal court system and to countenance a series of federal court filings by Plaintiff that
have gone on for far too long.” (Doc. 42, p. 11.)
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation
(Doc. 42) is ADOPTED, CONFIRMED, and made a part of this Order.
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2.

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

3.

Plaintiff’s Affidavit Accompanying Motion for Permission to Appeal in
Forma Pauperis (Doc. 40) is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 20, 2017.

Copies to:
Counsel of Record
Pro Se Party

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