Smith et al v. Memphis Light Gas and Water et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS, ORDER OF DISMISSAL, ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 6 & 7 . Signed by Judge James D. Todd on 10/30/13. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
NATHANIEL SMITH and
BETTY SMITH,

)
)
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Plaintiffs,
)
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VS.
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MEMPHIS LIGHT, GAS, AND WATER, )
ET AL.,
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Defendants.
)

No. 13-2098-JDT-tmp

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 Nathaniel Smith and Betty Smith, residents of Memphis, Tennessee, filed
a pro se civil complaint on February 15, 2013, and a motion for leave to proceed in forma
pauperis. (Docket Entries 1 & 2.) U.S. Magistrate Judge Tu M. Pham subsequently granted
leave to proceed in forma pauperis. (D.E. 5.)1 On October 8, 2013, Magistrate Judge Pham
issued a Report and Recommendation For Sua Sponte Dismissal (“R&R”). (D.E. 6.) An
amended R&R was filed the same day. (D.E. 7.) Objections to the R&R were due within
14 days, on or before October 22, 2013. See Fed. R. Civ. P. 72(b)(2). However, Plaintiffs
have filed no objections.
1

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. 4.)

Plaintiff’s complaint alleges that the Defendants, Memphis Light, Gas, and Water and
John Does 1 - 20, wrongfully disconnected their utilities after rejecting their payment in the
amount of $9,053.38. They assert claims under the Consumer Credit Protection Act, as
amended, 15 U.S.C. § 1601 et seq., the provisions of which include the Electronic Funds
Transfer Act, 15 U.S.C. § 1693 et seq.;2 the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq.; and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Plaintiffs also
assert claims pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988, as well as a claim for
fraud under Tennessee law and for automobile theft under Tenn. Code Ann. § 97-17-42(1).
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), and pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter
jurisdiction. Having reviewed the complaint and the law, the Court agrees with the
Magistrate Judge’s recommendation. The Magistrate Judge 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 be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and pursuant to Fed.
R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction.

2

The implementing regulations of the Electronic Funds Transfer Act, 12 C.F.R. § 205 et seq., are known
are Regulation E.

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 for failure to state a claim and for lack of subject matter jurisdiction 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 $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.3
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

3

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.

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