Young v. HSBC Mortgage Services, Inc. et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE FOR SUA SPONTE DISMISSAL AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTICE OF APPELLATE FILING FEE 17 . Signed by Judge James D. Todd on 4/6/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

RICKEY G. YOUNG,
Plaintiff,
VS.
HSBC MORTGAGE SERVICES,
et al.,
Defendants.

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No. 14-1159-JDT-egb

ORDER ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE FOR SUA SPONTE DISMISSAL
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
NOTICE OF APPELLATE FILING FEE

On March 17, 2015, Magistrate Judge Edward G. Bryant issued a report and
recommendation [DE# 17] that the pro se complaint that was filed in this matter be dismissed
for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §
1915(e)(2) and Fed. R. Civ. Pr. 12(b)(6).
No timely objection has been filed. Consequently, the report and recommendation for
sua sponte dismissal of this matter is ADOPTED, and the case is hereby DISMISSED.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. Pursuant to the Federal Rules of
Appellate Procedure, a non-prisoner 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, he 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 (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, he must also pay the
full appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit

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in the Sixth Circuit Court of Appeals within thirty (30) days.1
The clerk is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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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 he is
specifically instructed to do so, Plaintiff should not send to this Court copies of motions intended for filing in the
Sixth Circuit.

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