Elnora v. Burger King LLC et al
Filing
79
ORDER denying 77 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Jeffrey L. Viken on 11/18/21. (SB) MAILED to Plaintiff. (CLR)
Case 5:20-cv-05033-JLV Document 79 Filed 11/18/21 Page 1 of 3 PageID #: 474
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DELCID ELNORA,
CIV. 20-5033-JLV
Plaintiff,
ORDER
vs.
BURGER KING LLC;
RALPH WILLIAM HOUSH, Mgts.;
BRIAN MICHAEL DUPREE;
TERRY TRIPP, Employee;
KENNETH ALEXANDER, a/k/a Kenny
Wells; SARA L. GOODMAN;
MATT CARPENTER, Mgts;
BETH M. HUDDLESTON;
LARRY, Employee; and
GARY WOODWARD,
Defendants.
On September 20, 2021, the court entered an order granting defendants’
motion to dismiss and dismissed plaintiff’s complaint. (Docket 74 at p. 5). By
an envelope date stamped October 23, 2021, plaintiff mailed a notice of appeal
and motion to proceed in forma pauperis on appeal. (Dockets 76 & 77). The
mailing was to a state agency which has no connection with the case. The
notice of appeal fails to identify the rulings of the district court which are the
subject of the appeal and the form is not dated. (Docket 76). The application
to proceed in forma pauperis is dated only as “10/[.]” (Docket 77 at p. 1).
Case 5:20-cv-05033-JLV Document 79 Filed 11/18/21 Page 2 of 3 PageID #: 475
A party may proceed on appeal in forma pauperis automatically if pauper
status was granted in the district court. Fed. R. App. P. 23(a)(3). Ms. Elnora
was allowed to proceed in forma pauperis in the district court. (Docket 9).
However, automatic pauper status is revoked if “the district court—before or
after the notice of appeal is filed—certifies that the appeal is not taken in good
faith[.]” Fed. R. App. P. 23(a)(3)(A). Because plaintiff elected to file a motion for
in forma pauper status on appeal instead of proceeding automatically, the court
must determine whether the appeal is taken in good faith. “Good faith in this
context is judged by an objective standard and not by the subjective beliefs of
the appellant.” Maddox v. Chisago Cty. Sheriff Office, No. 10-CV-2133, 2010
WL 3119393, at *2 (D. Minn. Aug. 5, 2010) (citing Coppedge v. United States,
369 U.S. 438, 444-45 (1962)).
The court is unable to determine if an appeal is taken in good faith and
may be meritorious because plaintiff failed to complete the notice of appeal or
identify any issues on appeal. In determining whether an appeal is taken in
good faith, the court must decide “whether the claims to be decided on appeal
are factually or legally frivolous.” Id. (citing Coppedge, 369 U.S. at 444-45). “An
appeal is frivolous, and therefore cannot be taken in good faith, ‘where it lacks
an arguable basis either in law or in fact.’ ” Id. (quoting Neitzke v. Williams,
490 U.S. 319, 325 (1989)). For this reason, the court must deny plaintiff’s
motion for leave to proceed in forma pauperis on appeal.
Accordingly, it is
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Case 5:20-cv-05033-JLV Document 79 Filed 11/18/21 Page 3 of 3 PageID #: 476
ORDERED that plaintiff’s motion for leave to appeal in forma pauperis
(Docket 77) is denied.
IT IS FURTHER ORDERED that plaintiff shall pay the $505 appellate
filing fee to the Clerk of the United States District Court for the District of
South Dakota or seek leave to proceed in forma pauperis in the United States
Court of Appeals for the Eighth Circuit.
Dated November 18, 2021.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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