Brown v. Griffin, et al

Filing 83

ORDER denying 81 Motion for Leave to Proceed in forma pauperis . Signed by Judge Hugh Lawson on 4/13/2006. (nbp,HL)

Brown v. Griffin, et al

Doc. 83

Case 6:03-cv-00043-HL

Document 83

Filed 04/13/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA THOMASVILLE DIVISION BILLY EUGENE BROWN, : : Plaintiff : : VS. : : WILEY GRIFFIN and J. MOSELEY : BROWN, : : Defendants : : _________________________________ :

CIVIL ACTION NO.: 6:03-CV-43 (HL)

ORDER Plaintiff BILLY EUGENE BROWN has filed a motion to proceed in forma pauperis on appeal from the Court's February 3, 2006 Order denying his motion to proceed in forma pauperis on appeal (R. at 77) and the Court's March 16, 2006 Order denying his motion for reconsideration of the Court's February 3, 2006 Order (R. at 79). For the reasons discussed below, this motion is denied. Plaintiff filed his Notice of Appeal on November 10, 2005 (R. at 71). The United States Court of Appeals for the Eleventh Circuit dismissed his appeal on December 7, 2005 for want of prosecution because plaintiff failed to pay the full docketing and filing fee or, alternatively, file a motion for leave to proceed in forma pauperis on appeal. A review of court records on the United States Courts of Appeals PACER docket report shows that plaintiff then apparently filed a "Motion to Vacate Entry of Dismissal." On December 22, 2005, the United States Court of Appeals for the Eleventh Circuit returned this motion to plaintiff with "instructions on filing a motion to reinstate." It does not appear that plaintiff has filed such a motion to reinstate the appeal. Plaintiff filed a motion for leave to proceed in forma pauperis on appeal in this Court on January 5, 2007. (R. at 76). Because plaintiff had no pending appeal at the time, the Court denied the motion as moot on February 3, 2006. (R. at 77). Plaintiff filed his motion for reconsideration of the Court's February 3, 2006 Order. (R. at 79). As plaintiff did not

Dockets.Justia.com

Case 6:03-cv-00043-HL

Document 83

Filed 04/13/2006

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have a pending appeal, the Court denied this motion for reconsideration. Plaintiff is now attempting to appeal this Court's denial of his motion to proceed in forma pauperis on appeal. However, Fed. R. App. P. 24 provides as follows regarding what action a party should take when a district court denies his motion to proceed in forma pauperis on appeal: "A party may file a motion to proceed on appeal in forma pauperis in the court of appeals within 30 days after service" of the district court's denial of his motion to proceed in forma pauperis on appeal. In other words, after the district court denies a motion to proceed in forma pauperis on appeal, as it did in this case, the party should file a motion in the court of appeals "calling into question the correctness of the action of the district court," as opposed to filing an appeal. Fed. R. App. P. 24 advisory committee's note. As plaintiff does not have the right to appeal from this Court's denial of his motion to proceed in forma pauperis on appeal, the Court DENIES his current motion to proceed in forma pauperis in this appeal. SO ORDERED, this 13th day of April, 2006.

s/ Hugh Lawson HUGH LAWSON, JUDGE

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