Barnes v. Combs et al

Filing 11

ORDER Certifying that any Appeal of Court's Orders would not be in good faith re: 9 Request filed by John Barnes Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN BARNES,
Plaintiff,
v.

Case No. 2:11-CV-14484

TOM COMBS, et. al.,
Defendants.
/
ORDER CERTIFYING THAT ANY APPEAL OF COURT’S
ORDERS WOULD NOT BE IN GOOD FAITH
Plaintiff John Barnes is a state prisoner currently incarcerated at the Thumb
Correctional Facility in Lapeer, Michigan. On November 16, 2011, this court summarily
dismissed Plaintiff’s pro se civil rights complaint. (11/16/2011 Order, Dkt. # 3), and
subsequently denied his Federal Rule of Civil Procedure 59 motion to alter or amend
judgment. (1/25/2012 Order, Dkt. # 5.) On February 14, 2012, Plaintiff filed a notice of
appeal, in which he seeks to appeal the denial of the motion to alter or amend
judgment, and subsequently requested a determination that his appeal is undertaken in
good faith. Pursuant to 28 U.S.C. § 1915(a)(3), the court certifies that any appeal from
the court’s order of summary dismissal or order denying Plaintiff’s motion to alter or
amend judgment would be frivolous and not taken in good faith.
Under § 1915(a)(3),”[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.” Although “the question of
whether the appeal is taken in good faith is irrelevant as to the assessment of fees”
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because Plaintiff is a prisoner, the Sixth Circuit has nevertheless requested that district
courts “make a certification under § 1915(a)(3) for all cases filed by prisoners and for all
cases filed by non-prisoners seeking leave to proceed in forma pauperis on appeal.”
McGore v. Wrigglesworth, 114 F.3d 601, 611-12 (6th Cir.1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199, 211-12 (2007). “In the absence of some
evident improper motive, the applicant's good faith is established by the presentation of
any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674, 674 (1958)
(per curiam). In this case, for reasons stated in greater detail in the court’s November
16, 2011 order, the complaint does not set forth any arguable factual or legal basis upon
which relief may be granted. Moreover, Plaintiff’s motion to alter or amend judgment did
not identify any grounds requiring an alteration or amendment of the summary dismissal
and merely restated Plaintiff’s belief that Defendants violated his constitutional rights.
Accordingly, the court discerns no non-frivolous basis for an appeal of the court’s orders
and CERTIFIES that any appeal of these orders is not taken in good faith.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 12, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 12, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\11-14484.BARNES.Deny.Good.Faith.Cert.db.wpd

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