Mullins v. Bank of America Corp.

Filing 21

REPORT AND RECOMMENDATIONS re 20 MOTION for Leave to Appeal in forma pauperis filed by James R Mullins, Jr. - It is therefore Recommended that this Court should therefore certify to the Sixth Circuit that the appeal is not taken in objective good faith and should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/4/2012. Signed by Magistrate Judge Michael R Merz on 08/16/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES R. MULLINS, JR.,
Plaintiff,

Case No. 3:12-cv-131
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vs:
BANK OF AMERICA CORP.,
Defendant.

REPORT AND RECOMMENDATIONS ON MOTION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS
This case is before the Court on James R. Mullins, Jr.’s, Motion to Proceed on Appeal in
forma pauperis (Doc. No. 20).

The Sixth Circuit Court of Appeals requires that all district

courts in the Circuit determine, in all cases where the appellant seeks to proceed in forma pauperis,
whether the appeal is frivolous. Floyd v. United States Postal Service, 105 F.3d 274 (6th Cir.
1997).
28 U.S.C. §1915(a)(3) provides that “[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.”
Plaintiff was granted leave to proceed in forma pauperis in this Court, but that
determination is not conclusive, since the appeal involves a separate proceeding. Slack v.
McDaniel,529 U.S. 473 (2000); Spruill v. Temple Baptist Church, 141 F.2d 137, 138 (D.C.
Cir.1944). If the party was permitted to proceed in forma pauperis in the district court, the party
may proceed on appeal in forma pauperis without further authorization unless the district court
certifies in writing that an appeal would not be taken in good faith, or the party is not otherwise
entitled to proceed as a pauper. See Fed. R.App. P. 24(a)(3). If the district court denies the

individual leave to proceed in forma pauperis on appeal, the party may file, within thirty days after
service of the district court's decision as prescribed for by Fed. R.App. P. 24(a)(4), a motion with
the Court of Appeals for leave to proceed as a pauper on appeal. The party's motion must include a
copy of the affidavit filed in the district court and the district court's statement as to its reasons for
denying pauper status on appeal. See Fed. R.App. P. 24(a)(5). Callihan v. Schneider, 178 F.3d
800, 803 (6th Cir. 1999), holding Floyd v. United States Postal Service, 105 F.3d 274 (6th Cir.
1997), superseded in part by 1998 amendments to Fed. R.App. P. 24.
The test under §1915(a) for whether an appeal is taken in good faith is whether the litigant
seeks appellate review of any issue not frivolous. Coppedge v. United States, 369 U.S. 438
(1962). Thus an appellant's good faith subjective motivation for appealing is not relevant, but
rather whether, objectively speaking, there is any non-frivolous issue to be litigated on appeal.
This test will often be difficult to apply in any conclusive manner at the district court level because
only a bare notice of appeal is before the District Court; it will often be unable to evaluate the
issues appellant intends to raise on appeal because the appellant has no occasion to reveal those
issues in a notice of appeal.
Mr. Mullins is the defendant in a foreclosure action in the Preble County Common Pleas
Court.

He attempted to remove this case from that Court without the consent of all the

Defendants in that case and far later than the thirty days after which the case had become
removable. He has made no colorable argument to overcome those two objections to the
removal. This Court should therefore certify to the Sixth Circuit that the appeal is not taken in
objective good faith and should not be permitted to proceed in forma pauperis.
August 16, 2012.

s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).