LINDER v. DEA ADMINISTRATOR

Filing 26

ORDER DENYING REQUEST TO PROCEED ON APPEAL IN FORMA PAUPERIS - denying 25 Motion for Leave to Appeal in forma pauperis (USCA #20-03377). SEE ORDER. Copy to Plaintiff via US Mail. Signed by Judge James Patrick Hanlon on 1/8/2021. (KAA)

Case 2:20-cv-00037-JPH-MJD Document 26 Filed 01/08/21 Page 1 of 3 PageID #: 119

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DAVID W LINDER,

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Plaintiff,
v.
DEA ADMINISTRATOR,
Defendant.

No. 2:20-cv-00037-JPH-MJD

ORDER DENYING REQUEST TO PROCEED ON
APPEAL IN FORMA PAUPERIS
Plaintiff, David Linder, seeks leave to proceed on appeal without
prepaying the appellate fees. Dkt. 25. However, an appeal may not be taken in
forma pauperis if the trial court certifies that the appeal is not taken in "good
faith." 28 U.S.C. § 1915(a)(3). "Good faith," in the context of § 1915(a)(3),
refers to the "more common legal meaning of the term, in which to sue in bad
faith means merely to sue on the basis of a frivolous claim." Lee v. Clinton, 209
F.3d 1025, 1026 (7th Cir. 2000). In other words, § 1915(a)(3)'s "good faith"
determination is not about the plaintiff's sincerity in requesting appellate
review. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). A sincere
litigant still lacks objective "good faith" under § 1915(a)(3) if his claim is one
that "no reasonable person could suppose to have any merit." Lee, 209 F.3d at
1026.
Under this standard, Mr. Linder's request to appeal in forma pauperis is
denied. The Court dismissed this case because any challenge to future

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enforcement of the Controlled Substances Act against Mr. Linder was "'too
speculative' to support his claim." Dkt. 15 (quoting United States v. Meza–
Rodriguez, 798 F.3d 664, 668 (7th Cir. 2015)).
There is no objectively reasonable argument that Mr. Linder has suffered
"an actual or imminent injury." Dkt. 15 at 1 (quoting Marshall v. Knight, 445
F.3d 965, 969 (7th Cir. 2006). Mr. Linder seeks "to clear the way" to possess
substances that the Controlled Substances Act would otherwise prevent him
from possessing. Id. (quoting dkt. 14 at 3). But he remains a prisoner and has
not alleged facts showing that federal prosecution for possessing those
substances is imminent—or showing anything more than "a merely speculative
future" injury. Marshall, 445 F.3d at 969–70; Diaz v. Duckworth, 143 F.3d
345, 347 (7th Cir. 1998) ("Certainty is not required but a remote possibility
won't do."). Indeed, the Bureau of Prisons' inmate locator lists Mr. Linder's
release date as "LIFE." https://www.bop.gov/inmateloc/index.jsp (David
William Linder, Register Number: 25913-048); see United States v. Linder, No.
05-4557, 200 Fed. Appx. 186 (4th Cir. 2006) (affirming Mr. Linder's convictions
and sentences, including "a life sentence on the drug conspiracy count"). If
that situation changes, this case's dismissal without prejudice, dkt. 16, will not
prevent him from trying again.
There is no objectively reasonable argument that Mr. Linder's proposed
appeal has merit, so this appeal is not taken in "good faith," and the motion for
leave to proceed on appeal in forma pauperis, dkt. [25], is DENIED.
SO ORDERED.
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Case 2:20-cv-00037-JPH-MJD Document 26 Filed 01/08/21 Page 3 of 3 PageID #: 121

Date: 1/8/2021

Distribution:
DAVID W LINDER
25913-048
TERRE HAUTE - FCI
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808

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