Rosondich et al v. US Attorney General et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION FOR DISMISSAL, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 14 . Signed by Judge James D. Todd on 11/19/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DUSTIN BRYCE ROSONDICH,
ET AL.,
Plaintiffs,
VS.
ERIC HOLDER,
Defendant.

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No. 15-1082-JDT-egb

ORDER ADOPTING REPORT AND RECOMMENDATION FOR DISMISSAL,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On April 10, 2015, Plaintiffs Dustin Bryce Rosondich and Xylie Eshleman, residents
of Jacks Creek, Tennessee, filed a pro se complaint accompanied by motions to proceed in
forma pauperis and a motion for a temporary restraining order (“TRO”). (ECF Nos. 1, 2, 3
& 4.)1 An amended complaint was filed on May 7, 2015. (ECF No. 10.)2 United States
Magistrate Judge Edward G. Bryant subsequently granted leave to proceed in forma
pauperis. (ECF No. 13.) On October 26, 2015, Magistrate Judge Bryant issued a Report and

1

On April 13, 2015, Plaintiffs filed a motion for leave to file a DVD in support of their
motion for a TRO and submitted the DVD to the Clerk. (ECF No. 8.) The motion to file the
DVD is GRANTED.
2

Plaintiffs filed a motion to amend on May 7, 2015. (ECF No. 10.) However, a
complaint may be amended once as a matter of course without leave of Court. See Fed. R. Civ.
P. 15(a)(1). Therefore, the motion to amend is DENIED as unnecessary, and the Court construes
the document as an amended complaint.

Recommendation (“R&R”) in which he recommended the case be dismissed sua sponte as
frivolous. (ECF No. 14.) Objections to the R&R were due on or before November 12, 2015.
See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d). However, Plaintiffs have filed no
objections.
Plaintiffs sued now-former United States Attorney General Eric Holder in his
individual and official capacities. In the complaint and amended complaint, Plaintiffs allege
that the Defendant is responsible for relieving the nationwide “official oppression” they have
experienced from various unnamed law enforcement personnel while attempting to operate
motor vehicles in different jurisdictions. Plaintiffs contend they cannot legitimately be
required to obtain a driver’s license and registration. They seek an order requiring the
Defendant to bar all law enforcement personnel in all jurisdictions in the United States from
citing or arresting them for not having a driver’s license, registration or insurance and from
performing any search or seizure of Plaintiffs or collecting any data from Plaintiffs without
a sworn complaint from an injured party. The Magistrate Judge has recommended dismissal
prior to service on the Defendant on the ground that Plaintiffs’ claims are frivolous.
Having reviewed the pleadings and the law, the Court agrees with Magistrate Judge
Bryant’s recommendation for dismissal. The issuance of a more detailed written opinion is
unnecessary. Therefore, the R&R is hereby ADOPTED, and the complaint is DISMISSED
as frivolous and for failure to state a claim on which relief may be granted, pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(i)-(ii). The motion for a TRO is DENIED as moot.

2

The Court must also consider whether Plaintiffs should be allowed to appeal this
decision in forma pauperis, should they 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 or 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 (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 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 as frivolous and 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
Plaintiffs is not taken in good faith. Leave to proceed on appeal in forma pauperis is,
therefore, DENIED. Accordingly, if Plaintiffs file a notice of appeal, they must also pay the
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full $505 appellate filing fee or file motions to proceed in forma pauperis and supporting
affidavits in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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