McCoy v. Michigan Department of Corrections et al

Filing 54

ORDER denying 52 Motion to Extend Time on Appeal for Lack of Jurisdiction, and granting 53 Plaintiff's Motion to Proceed in forma pauperis on Appeal. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:20-cv-11345-TGB-DRG ECF No. 54, PageID.478 Filed 01/19/23 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT M-G McCOY,

2:20-CV-11345-TGB-DRG

Plaintiff,
ORDER DISMISSING
PLAINTIFF’S MOTION TO
EXTEND TIME ON APPEAL
FOR LACK OF
JURISDICTION
(ECF NO. 52)

vs.
DONALD SMITH, et al.,
Defendants.

AND GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS ON
APPEAL
(ECF NO. 53)
This matter is before the Court on pro se Plaintiff Robert M-G
McCoy’s motion to extend time on appeal (ECF No. 52) and motion to
proceed in forma pauperis on appeal (ECF No. 53). For the reasons below,
Plaintiff’s motion to extend time on appeal must be DISMISSED for lack
of jurisdiction. Plaintiff’s motion to proceed in forma pauperis on appeal
is GRANTED.
On November 14, 2022, Plaintiff filed a timely amended notice of
appeal of this Court’s Order denying Plaintiff’s motion to amend the
judgment. ECF No. 50. Plaintiff now requests additional time “to conduct
meaningful research” and file appellate briefing. ECF No. 52,
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Case 2:20-cv-11345-TGB-DRG ECF No. 54, PageID.479 Filed 01/19/23 Page 2 of 3

PageID.465. While Federal Rule of Appellate Procedure 4(a)(5)(A) allows
a district court to extend the time to file a notice of appeal, no other
Federal Rule of Appellate Procedure or Federal Rule of Civil Procedure
permits the district court to extend time for filing appellate briefing.
Moreover, “[t]he filing of a notice of appeal is an event of jurisdictional
significance—it confers jurisdiction on the court of appeals and divests
the district court of its control over those aspects of the case involved in
the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982). Because Plaintiff has filed a notice of appeal in this case, this
Court lacks jurisdiction over his motion to extend time on appeal.
As to Plaintiff’s motion to proceed in forma pauperis, Federal Rule
of Appellate Procedure 24(a)(3) permits a party who has previously been
granted permission to proceed in forma pauperis in the district court to
maintain in forma pauperis status on appeal. But a district court may
revoke permission to proceed in forma pauperis if the appeal is not taken
in good faith. Fed. R. App. P. 24(a)(3)(A). An appeal can be taken in good
faith so long as it is “not frivolous.” Foster v. Ludwick, 208 F. Supp. 2d
750, 764 (E.D. Mich. 2002). The Court granted Plaintiff’s motion to
proceed in forma pauperis on July 13, 2020. ECF No. 8. Because “[t]he
good-faith test must not be converted into a requirement of a preliminary
showing of any particular degree of merit,” Ellis v. United States, 356
U.S. 674, 674–75 (1958), Plaintiff is permitted to proceed in forma
pauperis on appeal.
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Case 2:20-cv-11345-TGB-DRG ECF No. 54, PageID.480 Filed 01/19/23 Page 3 of 3

Accordingly, Plaintiff’s motion to extend time on appeal is
DISMISSED for lack of jurisdiction. If Plaintiff requires additional time
to complete necessary elements of his appeal—including filing appellate
briefing—he must seek permission from the Sixth Circuit, not this Court.
Plaintiff’s motion to proceed in forma pauperis on appeal is GRANTED.
IT IS SO ORDERED.

Dated: January 19, 2023

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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