Vargas v. Trauger et al

Filing 9

ORDER: The plaintiff's claims are patently without merit, the Court hereby CERTIFIES that the appeal in this matter is not in good faith. Accordingly, as indicated above, in order to pursue her appeal, the plaintiff must, within 30 days after se rvice of this order, either submit the $455 appellate filing fee to this Court in full, or file a motion directly with the Sixth Circuit Court of Appeals for leave to proceed as a pauper on appeal. The Clerk is DIRECTED to provide notice of this order to the Sixth Circuit Court of Appeals. Signed by District Judge Kevin H. Sharp on 7/29/13. (xc:Pro se party by regular and certified mail. )(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
ALVA N. VARGAS,
Plaintiff,
v.

ALETA A. TRAUGER, JULIET GRIFFIN,
JUDGE KENNEDY, JUDGE COLE,
JUDGE GILMAN, AND JUDGE ALICE M.
BATCHELDER,
Defendants.

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Case No. 3:13-cv-0600
Judge Sharp

ORDER
Following the dismissal of her complaint on immunity grounds and for failure to state a claim for
which relief may be granted, plaintiff Alva Vargas, proceeding pro se, has filed a Notice of Appeal to the
Sixth Circuit Court of Appeals. The plaintiff was permitted to proceed in forma pauperis in the district
court.
Pursuant to Rule 24 of the Federal Rules of Appellate Procedure,
A party who was permitted to proceed in forma pauperis in the district-court action . . .
may proceed on appeal in forma pauperis without further authorization, unless:
(A) the district court—before or after the notice of appeal is filed—certifies that the
appeal is not taken in good faith . . . and states in writing its reasons for the
certification or finding. . . .
Fed. R. App. P. 24(a)(3)(A); see also 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.”). If the district court denies the
individual leave to proceed in forma pauperis on appeal, the party may file, within thirty days after service
of the district court’s decision, a motion with the Court of Appeals for leave to proceed as a pauper on
appeal. Fed. R. App. P. 24(a)(5). The party’s motion must include a copy of the affidavit filed in the district
court (or, if no affidavit was filed in the district court, an affidavit as prescribed by Rule 24(a)(1)) and the
district court’s statement as to its reasons for denying pauper status on appeal. Fed. R. App. P. 24(a)(5);
Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999).
The test under § 1915(a) and Rule 24(a)(3) for whether an appeal is taken in good faith is
whether the litigant seeks appellate review of any issue not frivolous. Coppedge v. United States, 369

U.S. 438, 445–46 (1962). The test is an objective one, id. at 445, so an appellant’s good-faith subjective
motivation for appealing is not relevant. Rather the question is whether, objectively speaking, there is any
non-frivolous issue to be litigated on appeal. This test will often be difficult to apply in any conclusive
manner at the district court level because typically only a bare notice of appeal is before the district court.
In this case, however, the plaintiff’s Notice of Appeal is quite detailed, and she specifies the
Court’s findings with which she disagrees. Her assertions, however, do not substantiate the existence of
any non-frivolous issue. The plaintiff misapprehends the basis for the Court’s dismissal, and the fact
remains that her Bivens claims for injunctive relief against the district and appellate judges named as
defendants are barred by absolute judicial immunity, and/or for failure to state a claim for which relief
could be granted. The plaintiff’s good-faith lack of comprehension of the legal basis for the dismissal of
her claims does not amount to a good-faith basis for appeal. Because the plaintiff’s claims are patently
without merit, the Court hereby CERTIFIES that the appeal in this matter is not in good faith.
Accordingly, as indicated above, in order to pursue her appeal, the plaintiff must, within 30 days
after service of this order, either submit the $455 appellate filing fee to this Court in full, or file a motion
directly with the Sixth Circuit Court of Appeals for leave to proceed as a pauper on appeal. Her motion
must include an affidavit as prescribed by Rule 24(a)(1) of the Federal Rules of Appellate Procedure and
this Court’s statement as to its reasons for denying pauper status on appeal. Fed. R. App. P. 24(a)(5).
The Sixth Circuit will then issue its own ruling as to whether the plaintiff should be granted leave to pursue
her appeal in forma pauperis. All filings in the Sixth Circuit Court of Appeals should be mailed to: Clerk of
Court, Potter Stewart United States Courthouse, 100 East Fifth Street, Suite 540, Cincinnati, OH 45202.
The Clerk is DIRECTED to provide notice of this order to the Sixth Circuit Court of Appeals.
It is so ORDERED.

Kevin H. Sharp
United States District Judge

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