FAILS v. CREWS et al

Filing 59

ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. ADOPTING 56 REPORT AND RECOMMENDATION. Signed by JUDGE ROBERT L HINKLE on 12/30/2013. **Copy to USCA. (pll)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

ANTHONY FAILS,
Plaintiff,
v.

CASE NO. 4:13cv456-RH/GRJ

SECRETARY, DEPARTMENT OF
CORRECTIONS et al.,
Defendants.
_____________________________/

ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

This case is before the court on the report and recommendation, ECF No. 56,
and the objections, ECF Nos. 57 and 58. I have reviewed de novo the issues raised
by the objections. The report and recommendation concludes that the plaintiff
should not be given leave to appeal in forma pauperis. That is plainly correct.
The plaintiff has filed at least two notices attempting to appeal to the United
States Court of Appeals for the Eleventh Circuit from the magistrate judge’s order
of September 10, 2013. That order refused to remand the case to state court and
refused to appoint an attorney for the plaintiff. The order was not appealable for
two reasons: first, a magistrate judge’s nondispositive orders are reviewable by the

Case No. 4:13cv456-RH/GRJ

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assigned district judge under Federal Rule of Civil Procedure 72, not directly by
the court of appeals; and second, even a district judge’s order refusing to remand a
case or to appoint an attorney is not a final order that is immediately appealable.
Not surprisingly, the Eleventh Circuit dismissed at least one of the plaintiff’s
attempted appeals for lack of jurisdiction. See ECF No. 55.
Whether any other appeal is still pending may be unclear. I treated the
plaintiff’s first notice of appeal, ECF No. 17, as a Rule 72 objection. The notice
did not mention the Eleventh Circuit, and I thus reasonably construed the notice as
seeking review by the appropriate method—that is, review by the district judge
under Rule 72. The plaintiff has made two other filings that perhaps constitute
notices of appeal. These are ECF No. 24 (denominated a “second” notice of
appeal and dated October 7, 2013) and ECF No. 29 (a letter with an attached notice
of appeal dated October 4, 2013). The Eleventh Circuit’s dismissal, ECF No. 55,
may have been effective to dismiss all pending appeals. If not, the Eleventh
Circuit will dismiss any remaining appeal in due course. The Eleventh Circuit has
no jurisdiction over any purported appeal of the magistrate judge’s nonappealable
order, and that will remain true no matter how many notices of appeal the plaintiff
files.
For these reasons,
IT IS ORDERED:

Case No. 4:13cv456-RH/GRJ

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The report and recommendation is ACCEPTED and adopted as the court’s
opinion. The motion for leave to appeal in forma pauperis, ECF No. 49, is
DENIED.
SO ORDERED on December 30, 2013.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv456-RH/GRJ