Munt v. Roy et al

Filing 56

ORDER denying 48 Application on Proceed In Forma Pauperis on Appeal (Written Opinion) Signed by Judge Susan Richard Nelson on 6/18/2018. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOEL MARVIN MUNT,

Case No. 17-CV-5215 (SRN/SER)

Plaintiff,
v.

ORDER

TOM ROY, Commissioner of
Corrections; MIKE WARNER; and
DAVID COWARD,
Defendants.

On January 9, 2018, Magistrate Judge Steven E. Rau granted plaintiff Joel Marvin
Munt’s application to proceed in forma pauperis (“IFP”). See ECF No. 10. Munt
nevertheless objected to the order on the grounds that both Judge Rau and the
undersigned should have recused from this matter and therefore had no lawful basis to
adjudicate the IFP application. See ECF No. 13. In an order dated May 4, 2018, the
Court overruled Munt’s objection. See ECF No. 44. Munt now seeks to appeal from that
order overruling his objection. 1
Under Rule 24(a)(3) of the Federal Rules of Appellate Procedure,
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
1

Recently the Court also denied directly a motion to recuse filed by Munt. See ECF
No. 43. Munt’s notice of appeal states that he is appealing only the order entered May 4,
2018 — that is, the order overruling his objection to the earlier order granting IFP status.
That said, the analysis here would be much the same had Munt sought to appeal from the
order denying his motion for recusal.

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 in good faith or finds that the
party is 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.
As was just explained, Munt was granted IFP status by Judge Rau in these proceedings.
See ECF No. 10. Nevertheless, his IFP application on appeal will be denied, as his
appeal is not taken in good faith. See Fed. R. App. P. 24(a)(3). To determine whether an
appeal is taken in good faith, the Court must decide whether the claims to be decided on
appeal are factually or legally frivolous. Coppedge v. United States, 369 U.S. 438, 44445 (1962). An appeal is frivolous, and thus cannot be taken in good faith, “where it lacks
an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A litigant may not seek immediate appeal of a decision not to recuse. “[C]ourts
have universally held that denial of a motion to recuse or disqualify is not a final order”
reviewable on appeal under 28 U.S.C. § 1291. United States v. Hart, No. C3-97-44
(D.N.D. Aug. 18, 1998) (collecting cases). Nor is an order denying recusal immediately
appealable under the collateral order doctrine. See, e.g., Mischler v. Bevin, 887 F.3d 271,
271 (6th Cir. 2018) (per curiam). Finally, the order does not involve “a controlling
question of law as to which there is substantial ground for difference of opinion . . . .” 28
U.S.C. § 1292(b). There is no non-frivolous basis upon which to seek immediate review
of the Court’s prior order.
2

Munt’s appellate IFP application is therefore denied. Munt is further warned that
dismissal of his appeal for frivolity by the Eighth Circuit Court of Appeals would
constitute a “strike” under 28 U.S.C. § 1915(g) and that he should therefore carefully
consider whether to prosecute that appeal.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY ORDERED that the application to proceed in forma pauperis on appeal of
plaintiff Joel Marvin Munt [ECF No. 48] is DENIED.

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

Dated: June 18, 2018

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