Rivera v. DLJ Properties et al

Filing 54

ORDER: The Court will ACCEPT and ADOPT Magistrate Judge Poplin's Report and Recommendations 53 . Accordingly, Plaintiffs' motions to proceed in forma pauperis 47 , 49 are hereby DENIED. Plaintiffs are permitted t o file a motion to proceed in forma pauperis in the Sixth Circuit Court of Appeals within thirty (30) days of receiving this order and are advised that failure to do so, or, alternatively, failure to pay the requisite filing fee, will result in the appeals dismissal for want of prosecution. Signed by District Judge Travis R McDonough on 11/21/2022. (AWS) Mailed to Edgar Rivera and Idanis Morales.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
EDGAR R. RIVERA DE JESUS, and
IDANIS I. GARCIA MORALES,
Plaintiff,
v.
DLJ PROPERTIES, LLC, CHERYL
JONES, and ELIZABETH JONES,

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Case No. 3:21-cv-51
Judge Travis R. McDonough
Magistrate Judge Debra C. Poplin

Defendant.

ORDER
Before the Court is United States Magistrate Judge Debra C. Poplin’s Report and
Recommendation (Doc. 53) on Plaintiffs’ motions for leave to proceed with an appeal in forma
pauperis (Docs. 47, 49).
On November 2, 2022, Magistrate Judge Poplin filed a report recommending that
Plaintiffs’ motions be denied. (Doc. 53, at 1.) Neither party filed objections to Magistrate Judge
Poplin’s Report and Recommendation.1 Nevertheless, the Court has reviewed the Report and
Recommendation, as well as the record, and it agrees with Magistrate Judge Poplin’s wellreasoned conclusions.

1

Magistrate Judge Poplin specifically advised that Plaintiffs had fourteen days to object to the
Report and Recommendation and that failure to do so constituted a waiver of the right to appeal
this Court’s order. (Doc. 53, at 5 n.2); see Fed. R. Civ. P. 72(b)(2); see also Thomas v. Arn, 474
U.S. 140, 148–51 (1985) (noting that “[i]t does not appear that Congress intended to require
district court review of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings”). Even accounting for the three additional
days for service as provided by Federal Rule of Civil Procedure 6(d), the period during which
Plaintiff could timely file objections has now elapsed.

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On February 16, 2021, Plaintiffs initiated this action by filing a complaint and an
accompanying application for leave to proceed in forma pauperis. (Docs. 1, 2.) Magistrate
Judge Poplin granted Plaintiffs’ applications, but the Court ultimately dismissed Plaintiffs’
claims. (Docs. 9, 12, 45, 46.) Shortly thereafter, Plaintiffs filed notices of appeal and the present
motions to proceed in forma pauperis. (Docs. 47, 48, 49, 50.) The appeal notices do not specify
the grounds for Plaintiffs’ appeal and, in fact, appear to be on a state rather than federal form. 2
(Docs. 48, 50.)
In the report, Magistrate Judge Poplin measures Plaintiffs’ actions against the “good-faith
standard” supplied by Federal Rule 24(a)(3) of Appellate Procedure and 28 U.S.C. § 1915(a)(3).
(Id. at 2.) According to the standard, “an appellant is required to show that the appeal presents a
substantial question that is not frivolous.” Powell v. Alcoa High School, No. 3:10-cv-212, 2010
WL 3087387, at *2 (E.D. Tenn. Aug. 5, 2010). To assist courts in determining whether an
appeal presents a non-frivolous substantial question, Rule 24(a)(1) and 28 U.S.C. § 1915(a)(1)
require parties to submit an affidavit stating the issues they anticipate presenting on appeal. Id.
Because Plaintiffs have not supplied any detail as to what they intend to argue on appeal, “there
is no way for this Court to exercise its judicial discretion to determine the meritorious character
of the appeal. . . .” Id.
For this reason, the Court will ACCEPT and ADOPT Magistrate Judge Poplin’s Report
and Recommendations (Doc. 53). Accordingly, Plaintiffs’ motions to proceed in forma pauperis
(Docs. 47, 49) are hereby DENIED. Plaintiffs are permitted to file a motion to proceed in forma

2

As Magistrate Judge Poplin points out, the certificate of service portion of the form refers to
Rule 20 of the Tennessee Rules of Appellate Procedure. (Doc. 53, at 5 n.1; Doc. 48, at 2; Doc.
50, at 2.)
2
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pauperis in the Sixth Circuit Court of Appeals within thirty (30) days of receiving this order and
are advised that failure to do so, or, alternatively, failure to pay the requisite filing fee, will result
in the appeals dismissal for want of prosecution. See Fed. R. App. P. 24(a)(5).
SO ORDERED.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

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