Marsh v. Rhodes et al
ORDER Denying 72 Motion to Strike and Requiring Plaintiff to File a Motion for Leave to Proceed In Forma Pauperis on Appeal By April 17, 2017. Signed by District Judge Victoria A. Roberts. (Attachments: # 1 Blank Affidavit Accompanying Motion for Persmission to Appeal In Forma Pauperis) (LVer)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
Case No. 14-12947
Honorable Victoria A. Roberts
LEO RHODES and THE CITY
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE [Doc. 72]
AND REQUIRING PLAINTIFF TO FILE A MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL BY APRIL 17, 2017
On January 25, 2017, the Court entered an order: (1) adopting Magistrate Judge
David Grand’s report and recommendation, recommending to grant Defendants’ second
motion to dismiss; (2) granting Defendants’ second motion to dismiss; and (3)
dismissing this case with prejudice. Plaintiff DeVonne Marsh filed a notice of appeal on
February 22 without the filing fee. He now files an “affidavit” requesting to proceed in
forma pauperis on appeal. [Doc. 71]. Marsh also filed a motion asking the Court to: (1)
strike Defendants’ second motion to dismiss, Magistrate Judge Grand’s report and
recommendation and the Court’s January 25 order; and (2) address his objections to a
separate report and recommendation submitted by Magistrate Judge Grand on April 21,
2016. [Doc. 72].
Marsh’s motion to strike lacks merit and is improper. The Court will not strike
Defendants’ properly filed motion, the report and recommendation, or this Court’s final
order entered over seven weeks ago. To the extent his motion could be construed as a
motion for reconsideration, it is untimely and lacks any justification for relief. Moreover,
the Court already overruled Marsh’s objections to the April 21 report and
recommendation in an order dated July 1, 2016. [See Doc. 42].
Marsh’s motion to strike [Doc. 72] is DENIED.
In his affidavit seeking to proceed in forma pauperis on appeal, Marsh states that
he does not have a job, has no money in his prisoner account, and “do[es] not own an
automobile, any stocks, bonds, etc.” This does not comply with the requirements to
appeal in forma pauperis.
“If a prisoner wishes to proceed in forma pauperis on appeal, the prisoner must
file in the district court, with the notice of appeal, a motion for leave to proceed in forma
pauperis, a certified copy of a prison trust account statement, and Form 4 from the
Appendix of Forms found in the Federal Rules of Appellate Procedure, or an affidavit
which contains the same detailed information found in Form 4.” In re Prison Litig.
Reform Act, 105 F.3d 1131, 1135-36 (6th Cir. 1997) (administrative order). A prisoner
granted pauper status before the district court is not automatically entitled to pauper
status on appeal. Id. at 1136 (citations omitted).
Marsh filed an affidavit, but he failed to file a motion for leave to proceed in forma
pauperis or a certified copy of his prison trust account statement showing the activity in
his account for the previous six months. Moreover, the facts Marsh summarily alleged
in his affidavit do not set forth all the information contained in Form 4 from the Appendix
Accordingly, by APRIL 17, 2017, Marsh MUST FILE: (1) a motion for leave to
proceed in forma pauperis on appeal; (2) a certified copy of his prison trust account
statement showing the activity in his account for the previous six months; and (3) either
a completed Form 4 from the Appendix of Forms (a blank copy of which is attached to
this order), or an affidavit which contains the same detailed information in the form.
Failure to timely submit these materials may result in the Court of Appeals
dismissing the appeal with prejudice for failure to prosecute and with an assessment of
the filing fee against Marsh. See In re Prison Litig. Reform Act, 105 F.3d at 1136 (“The
district court shall inform the prisoner that should the prisoner not file the required
documents within thirty (30) days, the court of appeals may dismiss the appeal for want
of prosecution under Fed. R. App. P. 3(a) and in which case the district court will assess
the entire filing fee. If dismissed under these circumstances, the appeal will not be
reinstated despite the payment of the full filing fee or subsequent correction of the
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: March 24, 2017
The undersigned certifies that a copy of this
document was served on the attorneys of
record and Devonne Marsah by electronic
means or U.S. Mail on March 24, 2017.
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