Smith v. McKee

Filing 87

OPINION and ORDER denying 83 Application to Proceed Without Prepaying Fees or Costs and denying certificate of appealability. Signed by District Judge Bernard A. Friedman. (CMul)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DERAY SMITH, Petitioner, Civil Action No. 09-CV-14876 vs. HON. BERNARD A. FRIEDMAN LLOYD RAPELJE, Defendant. _________________/ OPINION AND ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS This matter is before the Court on the Court’s review of petitioner Deray Smith’s notice of appeal and application to proceed in forma pauperis [docket entries 81 and 83]. Smith appeals the Court’s February 17, 2017, order denying his motions to compel and for reconsideration. The Court declines to grant a certificate of appealability because Smith has failed to make a substantial showing of the denial of a federal constitutional right.1 28 U.S.C. § 1915(a)(3) controls Smith’s application, stating that an “appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” The Supreme Court has defined an appeal taken in good faith as any non-frivolous appeal.2 The Court denies Smith’s application because his appeal is frivolous. No reasonable jurist could disagree with the Court’s February 2017 order. Accordingly,                                                              1 2 See Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002). Coppedge v. United States, 369 U.S. 438, 445 (1962). IT IS ORDERED that no certificate of appealability shall issue. IT IS FURTHER ORDERED that Smith’s application to proceed in forma pauperis is denied. _s/ Bernard A. Friedman___________ BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE Dated: June 14, 2017 Detroit, Michigan 2

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