Bracey et al v. Bracey Barbour et al

Filing 18

ORDER: Before the Court is pro se plaintiff Constance Braceys "Application for Permission to File Notice of Appeals" 17 . The Court construes this document as a Notice of Appeal. The Court CERTIFIES, pursuant to Fed. R. App. P. 24(a)(3)(A) and 28 U.S.C. § 1915(a)(3), that any appeal in this matter by plaintiff is not taken in good faith. Plaintiff must, within 30 days after service of this order, pay the $455.00 appellate filing fee in full OR file a motion for leave to appe al in forma pauperis directly with the SixthCircuit Court of Appeals and thereafter obtain an order from the Court of Appeals granting her leave to proceed in forma pauperis. If the plaintiff chooses to file a motion for leave to appeal in forma. The Clerk of Court is instructed for forward a copy of this order and the plaintiff's Notice of Appeal 17 to the Clerk for the Sixth Circuit Court of Appeals. Signed by District Judge Todd J. Campbell on 9/27/12. (xc:Pro se party by regular and certified mail. 6CCA Order and Ntc of Appeal via email.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CONSTANCE BRACEY and
ANNIE PEARL BRACEY,

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Plaintiffs,
v.
ELEANOR D. BRACEY BARBOUR,
JEAN MILLS STUART, LEON SHARBER,
and ADAM R. HILL,
Defendants.

Case No. 3:12-cv-629
Judge Campbell

ORDER
Before the Court is pro se plaintiff Constance Bracey’s “Application for Permission to File Notice of
Appeals” (ECF No. 17). The Court construes this document as a Notice of Appeal.
Ms. Bracey was permitted to file her civil action in this Court as a pauper, without prepayment of fees
or costs. However, under Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure, a party who was
permitted to proceed in forma pauperis in the district court is not entitled to pauper status on appeal, without
further authorization, if the district court certifies that the appeal is not taken in good faith or finds that the
party is not otherwise entitled to proceed in forma pauperis, and states in writing its reasons for the
certification or finding. Fed. R. App . P. 24(a)(3)(A); see Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir.
1999). Likewise, 28 U.S.C. § 1915(a)(3) provides that an appeal may not be taken in forma pauperis “if the
trial court certifies in writing that the appeal is not taken in good faith.” Where, as here, the party seeking to
appeal in forma pauperis is not a prisoner, the court must screen the proposed appeal to determine whether
it meets these standards. Callihan, 178 F.3d at 803.
Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure and § 1915(a)(3) establish an objective
standard. See Coppedge v. United States, 369 U.S. 438, 445 (1962); Scott v. Patrick, No. 1:06-cv-568, 2007
WL 426519, at * 1 (W.D. Mich. Feb. 2, 2007); Smith v. Dell, Inc., No. 06-2496-B/V, 2007 WL 221530, at * 3
(W.D. Tenn. Jan. 24, 2007). In order to meet the good-faith standard, an appellant must show that the appeal
presents a substantial question that is not frivolous. Scott v. Patrick, 2007 WL 426519, at * 1; Ishaaq v.

Compton, 900 F. Supp. 935, 945 (W.D. Tenn. 1995); Oswald v. Graves, 819 F. Supp. 680, 685 (E.D. Mich.
1993). Rule 24(a)(1) of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1915(a)(1) require an
affidavit by plaintiff identifying the issues the party intends to present on appeal which support her belief that
she is a person entitled to redress. Fed. R. App. P. 24(a)(1)(B), (C); 28 U.S .C. § 1915(a)(1). This
requirement is designed to assist courts in the process of determining whether an appeal is taken in good
faith. See Callihan, 178 F.3d at 803 (“[T]he district court must ascertain both the individual’s pauper status
and the merits of the appeal.”). The decision to grant or deny an application to proceed in forma pauperis
lies within the sound discretion of the district court. Flippin v. Cobuyn, 107 F. App’x 520, 521 (6th Cir. 2004).
Applying these standards, the Court concludes that the plaintiff should not be granted leave to appeal
in forma pauperis, as her appeal would undoubtedly be frivolous. In her present motion, the plaintiff
complains that the Court dismissed her complaint and denied her motion for a temporary restraining order
without allowing her to put on evidence to show that the state court decision she seeks to challenge was
“prejudiced.” As “cause” for permission to appeal, the plaintiff avers only that the Court’s decision resulted
from judicial misconduct and an inappropriate personal relationship between the undersigned and the statecourt judge whose decisions the plaintiff contests. The plaintiff does not articulate any legal basis for
appealing this Court’s dismissal of her complaint, and her claims of judicial misconduct are premised solely
upon speculation. The Court denies the Plaintiffs’ frivolous, fanciful, and delusional allegations of judicial
misconduct.
Accordingly, the Court CERTIFIES, pursuant to Fed. R. App. P. 24(a)(3)(A) and 28 U.S.C. §
1915(a)(3), that any appeal in this matter by plaintiff is not taken in good faith.
It is therefore ORDERED that plaintiff must, within 30 days after service of this order, pay the
$455.00 appellate filing fee in full OR file a motion for leave to appeal in forma pauperis directly with the Sixth
Circuit Court of Appeals, as specified by Rule 24(a)(5) of the Federal Rules of Appellate Procedure, and
thereafter obtain an order from the Court of Appeals granting her leave to proceed in forma pauperis. If the
plaintiff chooses to file a motion for leave to appeal in forma pauperis, such motion should be filed at the
following address: Sixth Circuit Court of Appeals, Clerk’s Office, Room 540, Potter Stewart U.S. Courthouse,
100 E. Fifth Street, Cincinnati, OH 45202.

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The plaintiff is forewarned that failure either to submit the full $455 filing fee or to obtain leave directly
from the Sixth Circuit Court of Appeals to proceed on appeal in forma pauperis may result in dismissal of the
appeal.
The Clerk of Court is instructed for forward a copy of this order and the plaintiff’s Notice of Appeal
(ECF No. 17) to the Clerk for the Sixth Circuit Court of Appeals.
It is so ORDERED.

Todd Campbell
United States District Judge

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