Reed-Rajapakse v. Memphis Light Gas and Water et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATION 60 OF MAGISTRATE JUDGE AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTICE OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 7/19/13. (Todd, James)

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

SAMANTHA D. REED RAJAPAKSE,
Plaintiff,
VS.
MEMPHIS LIGHT, GAS AND
WATER DIVISION, et al.,
Defendants.

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No. 12-2807-JDT-dkv

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

On July 8, 2013, Magistrate Judge Diane K. Vescovo issued a report and
recommendation that the pro se second amended 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)(B)(ii) and for lack of subject-matter jurisdiction as to the state-law claims.
Plaintiff has filed objections to the report and recommendation.
Having carefully reviewed the record, the controlling case law, and Plaintiff’s
objections, the court agrees with the Magistrate Judge’s recommendation. Because the
Magistrate Judge thoroughly explained her decision and because an issuance of a more
detailed written opinion would be unnecessarily duplicative and would not enhance this

court’s jurisprudence, the court ADOPTS the report and recommendation for the reasons set
forth by Magistrate Judge Vescovo, and the case is hereby DISMISSED.
The next issue to be addressed is whether Plaintiff should be allowed to appeal this
decision in forma pauperis. Twenty-eight U.S.C. § 1915(a)(3) provides that 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. It
would be inconsistent for a district court to determine that a complaint should be dismissed
prior to service on the defendant 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 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.
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 $455 filing fee required by 28 U.S.C. §§ 1913 and 1917.1

1

The fee for docketing an appeal is $450. See Judicial Conference Schedule of Fees, ¶ 1, Note
following 28 U.S.C. § 1913. Under 28 U.S.C. § 1917, a district court also charges a $5 fee:
Upon the filing of any separate or joint notice of appeal or application for appeal or upon the
receipt of any order allowing, or notice of the allowance of, an appeal or of a writ of certiorari $5

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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) days2 of the filing of the notice
of appeal or the entry of this order, whichever occurred later, the district 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 accordingly.
IT IS SO ORDERED.

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

shall be paid to the clerk of the district court, by the appellant or petitioner.
2

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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