Buford v. St. Johns Community Services et al
Filing
9
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ORDER OF DISMISSAL ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH. Signed by Chief Judge S. Thomas Anderson on 2/1/18. (skc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
MELISSA BUFORD,
)
)
Plaintiff,
)
)
v.
)
No. 17-1153-STA-egb
)
ST. JOHN’S COMMUNITY SERVICES, )
JEANNE PEEVYHOUSE-WHERTER, )
HEATHER BARNER, LISA GRIFFIN, )
TONY GRIFFIN, BRIAN DRUSHALL, )
SHERRY DRUSHALL,
)
MARCIA FORD, and DUANE WEBB, )
)
Defendants.
)
______________________________________________________________________________
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
ORDER OF DISMISSAL
ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
______________________________________________________________________________
Before the Court is the United States Magistrate Judge’ Report and Recommendation that
the Court dismiss Plaintiff’s Complaint sua sponte for failure to state a claim. Plaintiff Melissa
Buford, who is proceeding pro se, filed her Complaint for violation of the Americans with
Disabilities Act on August 11, 2017. Pursuant to Administrative Order 2013-05, this case was
assigned to the United States Magistrate Judge for management of all pretrial matters, including
the issuance of a screening order under 28 U.S.C. § 1915(e). On December 12, 2017, the
Magistrate Judge issued a report and recommendation as part of his screening of the Complaint
and recommended that the Complaint be dismissed for failure to state a claim. Objections to the
Report and Recommendation were due within fourteen (14) days of the entry of the Report,
making the objections due no later than December 27, 2017.1 Giving Plaintiff the benefit of the
additional three days allowed under Federal Rule of Civil Procedure 6(d), Plaintiff’s objections
were due at the very latest by Tuesday, January 2, 2018.2
To date Plaintiff has filed no
objections to the Magistrate Judge’s Report. The Court need not review, under a de novo or any
other standard, those aspects of the report and recommendation to which no specific objection is
made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Rather, the Court may simply adopt the
recommendations of the Magistrate Judge to which no specific objection is filed. Id. at 151. In
the absence of any objection to the Magistrate Judge’s Report and Recommendation, the Court
hereby ADOPTS the Report. Plaintiff’s Complaint is dismissed sua sponte for failure to state a
claim.
The next issue to be addressed is whether Plaintiff should be allowed to appeal this
decision in forma pauperis. Under 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. The good faith
standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal
is not taken in good faith if the issue presented is frivolous. Id. The same considerations that
lead the Court to conclude the Complaint fails to state a claim also compel the conclusion that an
appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal in this matter by Plaintiff would not be taken in good faith and
Plaintiff may not proceed on appeal in forma pauperis.
1
The 14-day period actually expired on Tuesday, December 26, 2017, a date on which
the Clerk’s Office was closed in observance of the Christmas holiday. As a result, Plaintiff’s 14
days ran out the following day.
2
Tuesday, January 2, 2018, was the next business day on which the Clerk’s Office was
open. Plaintiff’s third day under Rule 6(d) fell on Saturday, December 30, 2017, and Monday,
January 1, 2018, was New Year’s Day.
2
The Sixth Circuit Court of Appeals decisions in McGore v. Wrigglesworth, 114 F.3d 601,
612–13 (6th Cir. 1997) and Floyd v. United States Postal Serv., 105 F.3d 274, 276 (6th Cir.
1997) apply to any appeal filed by Plaintiff in this case. If Plaintiff files a notice of appeal, she
must pay the entire $505 filing fee required by 28 U.S.C. §§ 1913 and 1917. The entire filing fee
must be paid within thirty (30) days of the filing of the notice of appeal. By filing a notice of
appeal, Plaintiff becomes liable for the full amount of the filing fee, regardless of the subsequent
progress of the appeal. If Plaintiff fails to comply with the above assessment of the appellate
filing fee within thirty (30) days3 of the filing of the notice of appeal or the entry of this order,
whichever occurred later, the Court will notify the Sixth Circuit, which will dismiss the appeal. If
the appeal is dismissed, it will not be reinstated once the fee is paid. McGore, 114 F.3d at 610.
The Clerk is directed to enter judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: February 1, 2018.
3
The district court may extend this deadline one time by thirty (30) days if the motion to
extend is filed before the expiration of the original deadline. McGore, 114 F.3d at 610.
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