FAILS v. CREWS

Filing 35

ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. The report and recommendation is ACCEPTED and adopted as the courts further opinion. The plaintiffs motion for leave to appeal in forma pauperis, ECF No. 26 , is DENIED. The case is remanded to the magistrate judge for further proceedings. Signed by JUDGE ROBERT L HINKLE on 4/21/2014.***Copy to USCA*** (dc)

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

ANTHONY J. FAILS,
Plaintiff,
v.

CASE NO. 4:13cv618-RH/CAS

MICHAEL CREWS, SECRETARY,
DEPARTMENT OF CORRECTIONS,
Defendant.
_______________________________/

ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
This case is before the court on the magistrate judge’s report and
recommendation, ECF No. 28, and the objections, ECF No. 32. I have reviewed
de novo the issues raised by the objections.
The report and recommendation concludes that the plaintiff’s motion for
leave to proceed on appeal in forma pauperis should be denied. This is correct for
three reasons.
First, the plaintiff has at least three “strikes” under 28 U.S.C. § 1915(g) and
has not adequately alleged that he is in imminent danger of serious physical injury.
The plaintiff therefore cannot proceed in forma pauperis.
Case No. 4:13cv618-RH/CAS

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Second, the plaintiff is attempting to appeal an order refusing to remand the
case to state court. The order is not appealable. In due course, the United States
Court of Appeals for the Eleventh Circuit will dismiss the appeal for lack of
jurisdiction, if the appeal is not first dismissed on other grounds.
Third, the refusal to remand the case was plainly correct. The defendant was
entitled to remove this case to this federal court. The plaintiff is not entitled to
have the case remanded.
Based on the second and third grounds, I certify under 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a) that the plaintiff’s
appeal is not taken in good faith and that the plaintiff is not otherwise entitled to
proceed on appeal in forma pauperis.
For these reasons,
IT IS ORDERED:
The report and recommendation is ACCEPTED and adopted as the court’s
further opinion. The plaintiff’s motion for leave to appeal in forma pauperis, ECF
No. 26, is DENIED. The case is remanded to the magistrate judge for further
proceedings.
SO ORDERED on April 21, 2014.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv618-RH/CAS