Bey v. American Honda Financial Services Corporation

Filing 39

ORDER: Plaintiff Ali Taj Bey's "Writ Of Mandamus To Compel This Court To Waive Any Filing Fees And Proceed Upon Payment Of Five Dollars To The Clerk Of Court" (Doc. # 38 ), which the Court construes as a Motion for leave to appeal in forma pauperis, is DENIED WITHOUT PREJUDICE. Signed by Judge Virginia M. Hernandez Covington on 8/2/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALI TAJ BEY,
d/b/a CRAIG ALLEN MYRICK,
Plaintiff,
v.

Case No. 8:17-cv-759-T-33MAP

AMERICAN HONDA FINANCIAL
SERVICES CORP., et al.,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon review of pro se
Plaintiff Ali Taj Bey’s

“Writ Of Mandamus To Compel This

Court To Waive Any Filing Fees And Proceed Upon Payment Of
Five Dollars To The Clerk Of Court” (Doc. # 38), which the
Court construes as a Motion for leave to appeal in forma
pauperis. For the reasons that follow, the Court denies the
Motion without prejudice.
Discussion
In the construed Motion, Bey “request[s] that this court
issue an order granting [him] the right to appeal a final
judgment and order entered by this court.” (Doc. # 38 at 2).
Rule 24 of the Federal Rules of Appellate Procedure and
28 U.S.C. § 1915 govern the determination of applications to

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proceed in forma pauperis on appeal. Rule 24(a) of the Rules
of Appellate Procedure provides in part:
(1) Motion in the District Court. Except as stated
in Rule 24(a)(3), a party to a district-court
action who desires to appeal in forma pauperis must
file a motion in the district court.
The party
must attach an affidavit that:
(A) shows in the detail prescribed by Form 4
of the Appendix of Forms the party’s inability
to pay or to give security for fees and costs;
(B)

claims an entitlement to redress; and

(C) states the issues that the party intends
to present on appeal.
(2) Action on the Motion. If the district court
grants the motion, the party may proceed on appeal
without prepaying or giving security for fees and
costs, unless a statute provides otherwise. If the
district court denies the motion, it must state its
reasons in writing.
(3) Prior Approval. A party who was permitted to
proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis
without further authorization, unless:
(A) the district court – before or after the
notice of appeal is filed – certifies that the
appeal is not taken in good faith or finds
that the party is not otherwise entitled to
proceed in forma pauperis and states in
writing its reasons for the certification or
finding, or
(B)
Fed.

R.

a statute provides otherwise.

App.

P.

24(a).

Similarly,

§

1915

provides,

pertinent part:
[A]ny court of the United States may authorize the
commencement, prosecution or defense of any suit,
action or proceeding, civil or criminal, or appeal

2

in

therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that
includes a statement of all assets such [person]
possesses that the person is unable to pay such
fees or give security therefor.
Such affidavit
shall state the nature of the action, defense or
appeal and affiant’s belief that the person is
entitled to redress.
***
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)(1), (3). The statute provides further
that

the

court

must

dismiss

a

case

at

any

time

if

it

determines that the allegation of poverty is untrue or the
action or appeal is frivolous.

Id. at (e)(2)(A), (B).

Thus,

two requirements must be satisfied for a party to prosecute
an appeal in forma pauperis: (1) the party must show an
inability to pay, and (2) the appeal must be brought in good
faith.
Here, Bey has not filed a notice of appeal, so the Court
is uncertain what order he wishes to appeal. Additionally,
the Court notes that it has not entered a final order or
judgment resolving this action. Although Bey’s Fourth Amended
Complaint was stricken for failure to comply with Federal
Rule of Civil Procedure 15(a), (Doc. # 37), the case remains
open with the Third Amended Complaint serving as the operative
complaint. The confusion is compounded by Bey’s Motion itself

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— although he lists the parties to this action in the caption,
the Motion includes a different case number for one of Bey’s
other cases that has been dismissed, Bey v. Experian, et al.,
Case

No.

8:17-cv-806-SDM-AEP.

Therefore,

it

is

unclear

whether Bey even intended to file his construed Motion in
this case.
Because the Court cannot determine what order Bey wishes
to appeal, the Court cannot determine whether the appeal is
non-frivolous

and

taken

in

good

faith.

Furthermore,

the

construed Motion is deficient because Bey has not included
any information about his financial status as required by 28
U.S.C.

§

1915(a)(1)

and

Rule

24(a).

Therefore,

Bey’s

construed Motion for leave to appeal in forma pauperis is
denied. But the Court denies the Motion without prejudice so
that Bey may file a proper motion for leave to appeal in forma
pauperis if he chooses to file a notice of appeal.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff Ali Taj Bey’s

“Writ Of Mandamus To Compel

This Court To Waive Any Filing Fees And Proceed Upon Payment
Of Five Dollars To The Clerk Of Court” (Doc. # 38), which the
Court construes as a Motion for leave to appeal in forma
pauperis, is DENIED WITHOUT PREJUDICE.
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DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of August, 2017.

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