Merida v. Ashbel T. Wall

Filing 23

ORDER denying 15 Motion for Leave to Appeal in forma pauperis; adopting 16 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 4/14/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
A.T. Wall
)
)
Defendant.
)
)
___________________________________)
JAVIER MERIDA,

C.A. No. 14-339 S

ORDER
WILLIAM E. SMITH, Chief Judge.
On October 20, 2015, United States Magistrate Judge Lincoln
D. Almond issued a Report and Recommendation (“R&R”) in the abovecaptioned matter recommending that Plaintiff’s Motion for Leave to
Appeal In Forma Pauperis (ECF No. 15) (“Motion”) be denied.
No. 16.)

(ECF

On November 4, 2015, Plaintiff filed a Declaration

objecting to the R&R (“Objection”). (ECF No. 17.) After reviewing
the Objection, the Court hereby OVERRULES it, and accepts the R&R
pursuant to 28 U.S.C. § 636(b)(1) as clarified below.
This Motion stems from a Petition for Writ of Habeas Corpus
(“Petition”) Plaintiff filed on July 25, 2014 seeking relief from
a state court criminal judgment.

(ECF No. 1.)

This Court denied

the Petition on August 20, 2015 because Plaintiff’s claims were
either meritless or procedurally defaulted.

(See Mem. & Order,

Aug. 20, 2015 ECF No. 9.)

On August 31, 2015, Plaintiff filed a

Notice of Appeal (ECF No. 10) along with a Letter (ECF No. 12) on
September 1, 2015 indicating Plaintiff’s intent to appeal and
requesting a Certificate of Appealability (“C.O.A.”).

This Court

denied the C.O.A. on September 18, 2015 because Plaintiff failed
to make a substantial showing of the denial of a constitutional
right as to any claim, as required by 28 U.S.C. § 2253(c)(2).

(ECF

No. 13.)
About a month after denying the C.O.A., Plaintiff filed the
present Motion to proceed in forma pauparis (“IFP”) during his
appeal.

(ECF No. 15.)

Based on Plaintiff’s financial means and

the Court’s denial of Plaintiff’s C.O.A., Magistrate Judge Almond
recommended denial of Plaintiff’s Motion. (ECF No. 16.) Plaintiff
timely objected, alleging (1) that the R&R’s conclusions regarding
his financial means failed to take into account his debts, such as
student loans, unpaid taxes, and legal expenses; and (2) that he
should not be barred from proceeding IFP because he acted in good
faith in seeking an appeal.

(Pl.’s Obj. to R&R 1-2, ECF No. 17.)

The Court has reviewed the R&R and each of Plaintiff’s claims of
error and concludes that the R&R did not err in denying Plaintiff
IFP status.
Most

significantly,

the

R&R

correctly

concluded

that

Plaintiff’s financial means do not warrant extending him IFP
status.

Plaintiff had a spending balance of $5,990.65 and an
2

encumbered balance of $1,000 as of October 2015.
Statement 1, ECF No. 15-1.)

(Inmate Account

And according to his application,

Plaintiff has no dependents, no regular monthly expenses, and he
is employed at the institution in which he is incarcerated. (Pl.’s
Mot. for Leave to Proceed IFP 1-2, ECF No. 15.)

Although Plaintiff

indicates he has student loan debts and other expenses, nowhere
does he indicate how his debts affect, if at all, the means he has
available for his appeal.

(Id.)

Indeed, as just noted, Plaintiff

indicated in his IFP application that he has no regular loan
payments or other expenses.
not

demonstrated

that

his

(Id.)
poverty

Based on this, Plaintiff has
is

enough

to

outweigh

the

“fairness to the society which ultimately foots the bill” so as to
merit IFP status.
5507093,

at

*1

McDonald v. Colvin, No. C.A. 15–326 ML, 2015 WL
(D.R.I.

Sept.

16,

2015)

(quoting

Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984)).

Temple

v.

On this basis,

the R&R properly denied Plaintiff’s IFP application.
The

R&R

also

concluded

that

Plaintiff’s

IFP

application

failed for the independent reason that his appeal is without merit,
and, thus, Plaintiff cannot meet 28 U.S.C. § 1915(a)(3)’s good
faith requirement.

(See R&R 2, ECF No. 16.)

Since the Court holds

that Plaintiff is not entitled to IFP status based his financial
resources, the Court need not reach this alternative basis for
denying Plaintiff’s application, or Plaintiff’s arguments that the
R&R reached it in error.

Plaintiff’s financial means do not
3

warrant granting him leave to proceed IFP and he is required to
pay the requisite appellate filing fee of $500.00 to proceed with
his appeal.
Plaintiff’s Objection is OVERRULED on the grounds stated
above and the R&R is accepted pursuant to 28 U.S.C. § 636(b)(1).

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: April 14, 2016

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