Brick v. Estancia Municipal School District et al

Filing 70

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson denying 68 First MOTION for Leave to Appeal in forma pauperis (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TISHA BRICK and A.B.
Plaintiffs,
v.

No. 1:20-cv-00881-WJ-KK

ESTANCIA MUNICIPAL SCHOOL DISTRICT, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
THIS MATTER comes before the Court on Plaintiff Tisha Brick's ("Plaintiff") Affidavit
Accompanying Motion for Permission to Appeal In Forma Pauperis, Doc. 68, filed April 26, 2021.
“In order to succeed on [a motion for leave to proceed on appeal without prepayment of
costs or fees], an appellant must show a financial inability to pay the required filing fees and the
existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised
on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). “An appeal may not
be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.”
28 U.S.C. § 1915(a)(3). “The Supreme Court has held that good faith is to be judged by an
objective standard, for review of any issue ‘not frivolous.’” Spearman v. Collins, 500 Fed.Appx.
742, 743 (10th Cir. 2012) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962). “An appeal
is frivolous when the result is obvious, or the appellant’s arguments of error are wholly without
merit.” Id.; see also Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002) (“an appeal is
frivolous if it lacks an arguable basis in either law or fact”).

Plaintiff has shown a financial inability to pay the required filing fees but has not shown
the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal. Plaintiff states:
My issues on appeal are: the final judgement in this action and from all orders of
this court entered with the exception of the below highlighted portions of the orders
by Magistrate Judge Kirtan Khalsa granting 2 Motion to Proceed under 28 U.S.C.
1915; granting 4 Motion to file electronically (Entered: 09/01/2020) and by
Magistrate Judge Kirtan Khalsa granting 8 Motion to Amend/Correct (Entered:
12/09/2020), beginning on the dates of 08/28/2020 and ending 04/22/2021.
Affidavit at 2. The Court concludes that Plaintiff's appeal is not taken in good faith and that her
request for leave to appeal in forma pauperis must be denied because she has not identified "the
existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised
on appeal." DeBardeleben, 937 F.2d at 505.
IT IS ORDERED that Plaintiff Tisha Brick's Affidavit Accompanying Motion for
Permission to Appeal In Forma Pauperis, Doc. 68, filed April 26, 2021, is DENIED.
THE COURT CERTIFIES that Plaintiff’s appeal is not taken in good faith.

________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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