MacConnell v. NaphCare Inc et al

Filing 56

REPORT AND RECOMMENDATIONS that 54 Plaintiff's MOTION for Leave to Appeal in forma pauperis be DENIED and that the Court certify under 28 U.S.C. 1915(a)(3) that Plaintiff's appeal is not taken in good faith. Objections to R&R due by 1/3/2014. Signed by Chief Magistrate Judge Sharon L Ovington on 12/17/13. (mm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RION T. MacCONNELL,
Plaintiff,

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vs.
SHERIFF PHIL PLUMMER, et al.,
Defendants.

Case No. 3:13cv00034
District Judge Timothy S. Black
Chief Magistrate Judge Sharon L. Ovington

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REPORT AND RECOMMENDATIONS1

Plaintiff Rion T. MacConnell proceeded in forma pauperis and pro se throughout
this case in this Court. On November 27, 2013, the Court issued a Decision and Entry
that (1) adopted several Reports and Recommendations (doc. #s 46, 47, 48); (2) granted
Defendants’ Motions to Dismiss; (3) denied Plaintiff’s Motion to Amend as futile; (4)
overruled Plaintiff’s Objections; and (5) terminated the case on the Court’s docket. (Doc.
#52). The Clerk of Court entered Judgment against Plaintiff that same day.
The case is presently before the Court upon Plaintiff’s Motion To Proceed In
Forma Pauperis On Appeal (Doc. #54), his Notice Of Appeal (Doc. 55), and the record as
a whole. Construing Plaintiffs’ Notice of Appeal in his favor, he seeks to appeal the
Decision and Entry issued on November 27, 2013 as well as the underlying Reports and
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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendations.

Recommendations.
Plaintiff’s Motion For In Forma Pauperis Status, which he executed under the
penalty of perjury, establishes that he lacks the financial wherewithal to pay the required
appellate filing fee and to otherwise proceed on appeal. But, turning to the issues
Plaintiff may seek to raise on appeal, his “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).
“If the district court determines that ... the appeal is not taken in good faith, or that the
individual is not otherwise entitled to pauper status, the district court must state its
decision in writing, and then immediately notify the parties of its decision.” Callihan v.
Schneider, 178 F.3d 800, 803 (6th Cir. 1999); see 28 U.S.C. §1915(a)(3).
For the reasons set forth in the three Report and Recommendations (Doc. #s 46,
47, 48) as previously adopted by the Court (Doc. #52), Plaintiff’s appeal is not taken in
good faith.
Accordingly, although Plaintiff is financially eligible to proceed in forma pauperis
on appeal, his appeal is not taken in good faith.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiff’s Motion To Proceed In Forma Pauperis (Doc. #54) be DENIED and that
the Court certify under 28 U.S.C. §1915(a)(3) that Plaintiff’s appeal is not taken in good
faith.

December 17, 2013

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge
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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(d),
this period is 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)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and Recommendation
is 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 Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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