Winkle v. Loranger et al

Filing 45

REPORT AND RECOMMENDATIONS REGARDING APPEAL IN FORMA PAUPERIS - Accordingly, it is respectfully recommended that this Court certify to the Sixth Circuit that this appeal is not taken in good faith and should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/18/2014. Signed by Magistrate Judge Michael R Merz on 08/01/14. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK R. WINKLE,
Plaintiff,

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vs

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Case No. 3:14-cv-020
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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CAROL S. LORANGER, et al.,

Defendants.

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REPORT AND RECOMMENDATIONS REGARDING APPEAL IN
FORMA PAUPERIS

This case is before the Court on Plaintiff=s Notice of Appeal filed July 21, 2014 (Doc. No.
44). Winkle did not pay the required filing fee for an appeal to the Sixth Circuit.
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
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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.
Plaintiff has filed no statement of why he should be permitted to proceed in forma
pauperis on appeal, nor has he outlined any of the issues he wishes to appeal. His filings in this
Court became increasingly harassing and abusive, resulting in his being sanctioned (Doc. No.
43). Based on Plaintiff’s failure ever to file an amended complaint which complied with the
Federal Rules of Civil Procedure, he has not shown any non-frivolous issue for appeal.

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Accordingly, it is respectfully recommended that this Court certify to the Sixth Circuit
that this appeal is not taken in good faith and should not be permitted to proceed in forma
pauperis

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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 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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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