Fuentes v. Salisbury

Filing 29

REPORT AND RECOMMENDATIONS recommending that Plaintiff's Motion to Appeal IFP be DENIED because the appeal is without merit. 26 MOTION for Leave to Appeal in forma pauperis filed by Jesus D Fuentes. Objections to R&R due by 12/6/2024. So Ordered by Magistrate Judge Lincoln D. Almond on 11/22/2024. (Noel, Jeannine)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
JESUS D. FUENTES
v.
WAYNE T. SALISBURY, JR.

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C.A. No. 23-00379-WES

REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge
Pending before the Court is the Application to Proceed Without Prepayment of Fees and
Affidavit filed by Jesus D. Fuentes. (ECF No. 26). Plaintiff seeks in forma pauperis status for
purposes of an appeal.
Federal Rule of Appellate Procedure 24 sets forth the steps a litigant must take to obtain
approval to appeal IFP. Fed. R. App. P. 24(a) requires a litigant seeking IFP status on appeal to
provide the District Court with an affidavit that (1) demonstrates the party’s inability to pay in the
detail prescribed by Form 4 of the Appendix of Forms; (2) claims an entitlement to redress; and (3)
states the issues that the party intends to present on appeal.
Plaintiff has demonstrated his inability to pay and filed a “Notice of Appeal” which satisfies
the second and third requirements of Fed. R. App. P. 24(a). Nevertheless, I recommend that his
Motion to Appeal IFP be DENIED because the appeal is without merit. Plaintiff’s right to appeal
IFP is governed by 28 U.S.C. § 1915 which 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.” 28 U.S.C. §
1915(a)(3). “Because the good faith standard is an objective one, an appeal is deemed not taken in
good faith if the issues presented are frivolous....An appeal is considered frivolous when it is based

on an ‘indisputably meritless legal theory or factual allegations that are clearly baseless.’” Lyons v.
Wall, C.A. No. 04-380-T, 2007 WL 2067661 at *1 (D.R.I. July 13, 2007) (internal citations
omitted). In the present case, the Motion for Certificate of Appealability was denied by District
Judge William E. Smith because Mr. Fuentes “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. 22 at p. 18).
He has still failed to make such a showing. Because the Court has determined that Mr. Fuentes is
not entitled to appeal at all, he is not entitled to appeal IFP, and I recommend his Motion be
DENIED.
Any objections to this Report and Recommendation must be specific and must be served and
filed with the Clerk of the Court within fourteen days of service of this Report and
Recommendation. See Fed. R. Civ. P. 72(b); DRI LR Cv 72. Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the District Court and the right to appeal
the District Court’s decision. See Brenner v. Williams-Sonoma, Inc., 867 F.3d 294, 297 n.7 (1st Cir.
2017); Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
November 22, 2024

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