Mayfield v. Kaiser Pickles, LLC

Filing 45

REPORT AND RECOMMENDATIONS DENYING 44 MOTION for Leave to Appeal in forma pauperis filed by Ricardo V. Mayfield, Sr. Objections to R&R due by 5/23/2013. Signed by Magistrate Judge Stephanie K. Bowman on 5/6/13. (Attachments: # 1 Certified Mail Receipt) (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RICARDO MAYFIELD
Case No. 1:12-cv-229
Plaintiff,
Beckwith, J.
Bowman, M.J.
v.
KAISER PICKLES, LLC,
Defendant.
REPORT AND RECOMMENDATION
This matter is before the Court on plaintiff=s motion for leave to proceed in forma
pauperis on appeal pursuant to 28 U.S.C. ' 1915. (Doc. 44). Pursuant to 28 U.S.C. '
1915(a)(3), A[a]n appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.@ See also Fed. R. App. P. 24(a). Good faith in
this context is demonstrated when the party seeks appellate review of an issue that is not
frivolous. See Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal is
frivolous where the appeal lacks an arguable basis either in law or fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
On April 23, 2013, the Court adopted the Report and Recommendation of the
Magistrate Judge recommending that Defendant’s motion to dismiss for lack of
prosecution and motion for summary judgment be granted. (Doc. 41). Thus, the Court
dismissed Plaintiff’s employment discrimination claims with prejudice. Furthermore, to
the extent the complaint contains pendent state law causes of action, the Court declined
to exercise subject matter jurisdiction over them and such claims were dismissed with

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prejudice. Id. The Court’s Order also certified, pursuant to 28 U.S.C. § 1915(a)(3), that
an appeal of the order would not be taken in good faith, and denied Plaintiff leave to
appeal in forma pauperis. Id. In light of the Court’s prior Order, the undersigned herein
RECOMMENDS that plaintiff’s motion for leave to proceed in forma pauperis on appeal
(Doc. 44) be DENIED.
Pursuant to Fed. R. App. P. 24(a)(4), plaintiff may file, within thirty (30) days after
service of the District Court’s Order adopting this Report and Recommdation, a motion
with the Sixth Circuit Court of Appeals for leave to proceed as a pauper on appeal.
Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United
States Postal Service, 105 F.3d 274 (6th Cir. 1997). Plaintiff’s motion must include a
copy of the affidavit filed in the District Court and this Court’s statement as to the reasons
for denying pauper status on appeal. Id.; see Fed. R. App. P. 24(a)(5).
Plaintiff is notified that if he does not file a motion within thirty (30) days of receiving
notice of the District Court’s decision as required by Fed. R. App. P. 24(a)(5), or fails to
pay the required filing fee of $455.00 within this same time period, the appeal will be
dismissed for want of prosecution. Callihan, 178 F.3d at 804. Once dismissed for want
of prosecution, the appeal will not be reinstated, even if the filing fee or motion for pauper
status is subsequently tendered, unless plaintiff can demonstrate that he did not receive
notice of the District Court’s decision within the time period prescribed for by Fed. R. App.
P. 24(a)(5). Id.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RICARDO MAYFIELD
Case No. 1:12-cv-229
Plaintiff,
Beckwith, J.
Bowman, M.J.
v.
KAISER PICKLES, LLC,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support of
the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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