Studstill El v. Taylor, City of

Filing 22

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL [#20]by Herbert Studstill El. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HERBERT STUDSTILL EL,
Case No. 15-cv-12336

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
CITY OF TAYLOR,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendant.
/

ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS ON APPEAL [#20]
Presently before the Court is Plaintiff Herbert Studstill El’s Application to
Proceed Without Prepaying Fees or Costs on Appeal, filed December 8, 2015. Dkt.
No. 20. This Court’s November 16, 2015 Opinion and Order concluded that
Plaintiff failed to state a claim upon which relief may be granted. Dkt. No. 17.
Plaintiff filed a Notice of Appeal on December 8, 2015. Dkt. No. 19.
Federal Rule of Appellate Procedure 24(a)(3) states:
(3) Prior Approval. A party who was permitted to proceed in forma
pauperis in the district-court action, or who was determined to be
financially unable to obtain an adequate defense in a criminal case,
may proceed on appeal in forma pauperis without further
authorization, unless:
(A) the district court—before or after the notice of appeal is filed—
certifies that the appeal is not taken good faith or finds that the party is

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not otherwise entitled to proceed in forma pauperis and states in
writing its reasons for the certification or finding; or
(B) a statute provides otherwise.
Fed. R. App. P. 24(a)(3). “Good faith” requires a showing that the issues are
arguable on the merits and are, therefore, not frivolous; it does not require a
showing of probable success. See Harkins v. Roberts, 935 F. Supp. 871, 873 (S.D.
Miss. 1996). “If the district court can discern the existence of any nonfrivolous
issue on appeal, the movant’s petition must be granted.” Id. “Although the term
‘frivolous’ is not subject to a ready made definition, generally ‘[a]n appeal is
frivolous when the result is obvious or when the appellant’s argument is wholly
without merit.’ ” Dubay v. Wells, 506 F.3d 422, 432-33 (6th Cir. 2007) (quoting
Pieper v. Am. Arbitration Assoc., 336 F.3d 458, 465 (6th Cir. 2003)).
Here, the Court concludes that the appeal is not taken in good faith. Plaintiff
failed to raise any arguments in support of his appeal. This Court thoroughly
reviewed Plaintiff’s case and determined that all of Plaintiff’s claims are subject to
dismissal under Rule 12(b)(6). Plaintiff has not identified any errors with respect to
this Court’s conclusion that Plaintiff cannot bring a claim under the Moorish
Zodiac Constitution, which is not within the limited jurisdiction of the federal
courts of the United States. Nor does Plaintiff explain what facts the Court missed
in determining that Plaintiff failed to put forth any facts in his pleadings to support
claims under the First, Fourth, Fifth, and Ninth Amendments. Lastly, Plaintiff did
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not explain why the Court erroneously concluded that his constitutional claims fail
to meet the requirements of Rule 12(b)(6).
Accordingly, for the foregoing reasons, the Court concludes that Plaintiff’s
appeal is not taken in good faith and his Application to Proceed In Forma Pauperis
[#20] is DENIED
IT IS SO ORDERED.
Dated:

February 3, 2016
/s/ Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
Copies of this Order were served on February 3, 2016 upon attorneys of record and Herbert
Studstill-El at 6296 Carnegie St., Romulus, MI 48174 by electronic and/or ordinary mail.
/s/ Tanya Bankston
Case Manager

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