Holmes v. Barker et al

Filing 50

ORDER overruling 49 plaintiff's objections to the magistrate judge's report and recommendation; accepting in whole 46 the magistrate judge's Report and Recommendation; and denying 43 plaintiff's Motion for Leave to Appeal in forma pauperis. Signed by District Judge Thomas W Phillips on October 6, 2009. (copy mailed to Mr. Holmes) (AYB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

JOSEPH C. HOLMES, Plaintiff, v. RUSSELL BARKER, et al., Defendants.

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No. 3:08-CV-495 (Phillips/Shirley)

MEMORANDUM AND ORDER On August 14, 2009, the Honorable C. Clifford Shirley, United States Magistrate Judge, filed an 3-page Report and Recommendation (R&R) [Doc. 46] in which he recommended that plaintiff's motion for leave to appeal in forma pauperis be denied because plaintiff has not complied with the requirements of 28 U.S.C. § 1915.

This matter is presently before the court on plaintiff's objections to the R&R [Doc. 49]. As required by 28 U.S.C. § 636(b)(1), the court has now undertaken a de novo review of those portions of the R&R to which plaintiff objects. After a review of the pleadings in this case, the court finds itself in agreement with Magistrate Judge Shirley that plaintiff has failed to comply with the requirements of 28 U.S.C. § 1915 to file an appeal without payment of fees or costs. In addition, the court also agrees with the magistrate

judge that plaintiff's request to file an interlocutory appeal is premature because plaintiff has not complied with the requirements of 28 U.S.C. § 1292. Consequently, plaintiff's

objections will be overruled, the R&R will be accepted in whole, and his motion for leave to appeal in forma pauperis will be denied.

For the foregoing reasons, as well as the reasons articulated by Magistrate Judge Shirley in his R&R, plaintiff's objections to the R&R [Doc. 49] are hereby OVERRULED in their entirety whereby the R&R [Doc. 46] is ACCEPTED IN WHOLE. Accordingly, plaintiff's motion for leave to appeal in forma pauperis [Doc. 43] is DENIED.

ENTER: s/ Thomas W. Phillips United States District Judge

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