Love v. Kongsberg Automotive

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE 5 FOR SUA SPONTE DISMISSAL, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTICE OF APPELLATE FILING FEE. Signed by Chief Judge J. Daniel Breen on 10/23/13. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
CASSANDRA LOVE,
Plaintiff,
v.

No. 13-1088

KONGSBERG AUTOMOTIVE,
Defendant.
_____________________________________________________________________________
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE FOR
SUA SPONTE DISMISSAL,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
NOTICE OF APPELLATE FILING FEE
______________________________________________________________________________
This lawsuit was brought by the pro se Plaintiff, Cassandra Love, on March 11, 2013,
alleging employment discrimination and retaliation. The matter was referred to the United States
Magistrate Judge, who recommended on July 16, 2013, that the complaint be dismissed for failure
to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). (D.E. 5.) No
objection to the magistrate judge's report and recommendation has been filed, and the time for such
objection has expired.
The Court has carefully reviewed the report and recommendation and the relevant materials
in the file and finds the recommendation correct in all respects. Accordingly, the report and
recommendation for sua sponte dismissal is ADOPTED as the order of the Court and this case is
hereby DISMISSED.
The Court must also consider whether Plaintiff should be allowed to appeal this decision in
forma pauperis, should she seek to do so. Pursuant to the Federal Rules of Appellate Procedure, a

nonprisoner desiring to proceed on appeal in forma pauperis must obtain pauper status under Fed.
R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800, 803–04 (6th Cir. 1999). Rule 24(a)(3)
provides that if a party was permitted to proceed in forma pauperis in the district court, she may also
proceed on appeal in forma pauperis without further authorization unless 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.” If the district court denies pauper status, the party may file a motion to proceed
in forma pauperis in the Court of Appeals. Fed. R.App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445,
82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962). The test for whether an appeal is taken in good faith is
whether the litigant seeks appellate review of any issue that is not frivolous. Id. It would be
inconsistent for a district court to determine that a complaint should be dismissed prior to service
on the defendants, but has sufficient merit to support an appeal in forma pauperis. See Williams v.
Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to
dismiss this case for failure to state a claim also compel the conclusion that an appeal would not be
taken in good faith.
It is CERTIFIED, pursuant to Fed. R.App. P. 24(a), that any appeal in this matter by Plaintiff
is not taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore, DENIED.
Accordingly, if Plaintiff files a notice of appeal, she must also pay the full $455 appellate filing fee
or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within thirty days.1

1

Pursuant to Fed. R. App. P. 3(a), any notice of appeal should be filed in this Court. A
motion to appeal in forma pauperis then should be filed directly in the United States Court of
Appeals for the Sixth Circuit. Unless she is specifically instructed to do so, Plaintiff should not
2

IT IS SO ORDERED this 23rd day of October, 2013.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

send to this Court copies of motions intended for filing in the Sixth Circuit.
3