Scullark et al v. HSBC Mortgage Services Inc. et al

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATION 5 , ORDER OF DISMISSAL, ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 6/5/13. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MIA SCULLARK, ET AL.,
Plaintiffs,
VS.
HSBC MORTGAGE SERVICES, INC.,
ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 13-2050-JDT-dkv

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

Plaintiffs Mia Scullark and Katrina Pipes, residents of Memphis, Tennessee, filed a
pro se civil complaint on January 25, 2013. (Docket Entry 1.) However, only Plaintiff
Scullark filed a motion for leave to proceed in forma pauperis. (D.E. 2.) The case was
referred to the assigned U.S. Magistrate Judge on March 27, 2013, for case management and
handling of all pretrial matters by determination or by report and recommendation, as
appropriate. (D.E. 3.) On April 23, 2013, the Plaintiffs filed an Emergency Motion For Stay
Of Foreclosure Sale. (D.E. 4.)
On May 15, 2013, the Magistrate Judge issued an Order Granting Leave to Proceed
In Forma Pauperis as to Plaintiff Scullark and a Report and Recommendation Of Dismissal

as to the entire complaint. (D.E. 5.) Objections to that report and recommendation were due
within 14 days. See Fed. R. Civ. P. 72(b)(2). However, the Plaintiffs have filed no
objections.
In this case, the standard form “Complaint for Violation of Civil Rights Under 42
U.S.C. § 1983” is accompanied by a “Complaint to Quiet Title, for Damges, for Legal and
Equitable Relief.” (D.E. 1-1.) The action arises out of a foreclosure on certain real property
in Memphis, and Plaintiffs purport to assert multiple causes of action against the Defendants
under various federal and state statutes and under state common law.
The Magistrate Judge has recommended dismissal prior to service on the Defendants
for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).

Specifically, the Magistrate Judge noted that the Plaintiffs had

previously filed an action in the Shelby County Chancery Court arising out of the same
circumstances and which had been dismissed for failure to state a claim on which relief may
be granted. Therefore, the Magistrate Judge determined that the present action is barred by
res judicata.
Having reviewed the complaint and the law, the Court agrees with the Magistrate
Judge’s recommendation. The Magistrate Judge has thoroughly explained her decision, and
the issuance of a more detailed written opinion would be unnecessarily duplicative and would
not enhance this Court’s jurisprudence. Therefore, the Court ADOPTS the report and
recommendation of the Magistrate Judge. For the reasons set forth in that report and
recommendation, this case is DISMISSED for failure to state a claim on which relief may
2

be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The emergency motion to stay the
foreclosure is DENIED as moot.
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, 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 for failure to state a claim also compel the conclusion that an appeal would not be taken
in good faith.

3

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 either or both Plaintiffs file a notice of appeal, they
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 (30) days.1
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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
specifically instructed to do so, Plaintiffs should not send to this Court copies of documents and motions intended for
filing in the Sixth Circuit.

4