Kuerbitz v. Meisner et al
Filing
56
OPINION AND ORDER GRANTING 53 Plaintiff's Application to Proceed without Prepayment of Fees or Costs on Appeal, and DENYING 54 Plaintiff's Application/Motion for Certification of Appealability. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARNOLD KUERBITZ,
Plaintiff,
Case No. 16-12736
Hon. Terrence G. Berg
v.
ANDREW E. MEISNER, et al.,
Defendants.
OPINION AND ORDER
GRANTING PLAINTIFF’S APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES OR COSTS ON
APPEAL (DKT. 53) AND DENYING PLAINTIFF’S
APPLICATION/MOTION FOR CERTIFICATION OF
APPEALABILITY (DKT. 54)
Pending before the Court is Plaintiff’s application to proceed
without prepaying fees or costs on appeal. Dkt. 53. Federal Rule of
Appellate Procedure 24(a)(1) provides that a party to a district court
action who desires to appeal in forma pauperis must file a motion
in the district court. Fed. R. App. P. 24(a)(1). An appeal may not be
taken in forma pauperis if the court determines that it is not taken
in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).
“[T]o determine if an appeal is in good faith, a court need only find
that a reasonable person could suppose that the appeal has some
merit.” Walker v. O’Brien, 216 F.3d 626, 631 (7th Cir. 2000).
Examination of Plaintiff’s application to proceed in forma pauperis reveals that Plaintiff is unable to afford the costs of an appeal.
See Dkt. 53. Furthermore, the Court finds that an appeal may be
taken in this matter in good faith. Accordingly, Plaintiff’s application to proceed in forma pauperis on appeal is GRANTED.1
Plaintiff also filed with this Court an Application/Motion for Certificate of Appealability, citing Federal Rules of Appellate Procedure 4(a)(1)(b) and 22(b). Dkt. 54. However, Rule 22(b)—which governs habeas corpus proceedings—does not apply in this case. See
Fed. R. App. P. 22(b). The applicable Federal Rules do not require
Plaintiff to obtain a Certificate of Appealability to appeal in this
matter. Plaintiff’s Motion is therefore DENIED.
SO ORDERED.
Dated: December 12, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
The Court notes that Federal Rule of Appellate Procedure 24(a)(3) also allows Petitioner to proceed in forma pauperis on appeal in this matter. Rule
24(a)(3) provides that a party who was permitted to proceed in forma pauperis in its district-court action may proceed on appeal in forma pauperis
without further authorization. Fed. R. App. P. 24(a)(3). The exceptions to
Rule 24(a)(3) do not apply in this case. See id. at 24(a)(3)(A)-(B). This Court
permitted Plaintiff to proceed in forma pauperis in his district-court action.
See Dkt. 5. Thus, Plaintiff may proceed accordingly on appeal.
1
2
Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on December 12, 2017.
s/A. Chubb
Case Manager
3
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