Browning v. Klee

Filing 41

ORDER denying Petitioner's 40 Application to Proceed In Forma Pauperis on Appeal filed by Shane Browning Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHANE ANTHONY BROWNING,
Petitioner,
vs.

No. 10-CV-13818
Hon. Gerald E. Rosen

PAUL KLEE,
Respondent.
___________________________/
ORDER DENYING PETITIONER’S APPLICATION
TO PROCEED ON APPEAL IN FORMA PAUPERIS

On March 22, 2013, the Court entered a Opinion and Order denying Shane
Browning's Petition for a Writ of Habeas Corpus and dismissed this case, with prejudice.
Plaintiff now seeks to appeal the Court’s ruling and asks that the appeal fees be waived
and he be granted leave to proceed on appeal in forma pauperis.
The United States Court of Appeals for the Sixth Circuit requires that all district
courts in the circuit determine, in all cases where the appellant seeks to proceed in forma
pauperis, whether the appeal would be frivolous, and has specifically asked this Court to
make this determination with respect to Petitioner’ Klee’s case.
28 U.S.C. § 1915(a)(3) provides that “[a]n 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 interpreted “good faith” as stated in § 1915 as “not frivolous”.
Coppedge v. United States, 369 U.S. 438, 445-446 (1962). The Supreme Court has

further defined a “frivolous” action as one that “lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831 (1989).
For the reasons stated in this Court’s Opinion and Order of March 22, 2013,
Plaintiff’s claims are factually and legally deficient. The Court, therefore, makes the
finding that Plaintiff’s claims are frivolous because they lack an arguable basis in law or
fact. Accordingly, this Court determines that any appeal from the Court’s decision would
be frivolous and, therefore, hereby certifies that Plaintiff’s appeal is not taken in good
faith.
Accordingly, pursuant to 28 U.S.C. § 1915(a)(3), the Court determines that
Plaintiff’s appeal may not be taken in forma pauperis.
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Application for Leave to Proceed on
Appeal In Forma Pauperis [Dkt. # 40] is DENIED.

Dated: October 2, 2013

S/Gerald E. Rosen
Chief Judge, United States District Court

I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on October 2, 2013, by electronic and/or ordinary mail.
S/Julie Owens
Case Manager, [phone]

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