Falkner v. United States Government

Filing 7

ORDER ADOPTING 6 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. Signed by Judge James D. Todd on 6/3/13. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BEVERLY J. FALKNER,
Plaintiff,
VS.
UNITED STATES GOVERNMENT,
Defendant.

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No. 13-2295-JDT-cgc

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

Plaintiff Beverly J. Falkner, a resident of Memphis, Tennessee, filed a pro se civil
complaint on May 10, 2013, and a motion for leave to proceed in forma pauperis. (Docket
Entries 1 & 2.) The Court subsequently granted leave to proceed in forma pauperis. (D.E.
5.) In accordance with Administrative Order 2013-05, the assigned U.S. Magistrate Judge
is responsible for case management and handling of all pretrial matters by determination or
by report and recommendation, as appropriate. On May 16, 2013, the Magistrate Judge
issued a Report and Recommendation in which she recommended that the case be dismissed
sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B). (D.E. 6.) Objections to that report and
recommendation were due within 14 days. See Fed. R. Civ. P. 72(b)(2). However, Plaintiff
has filed no objections.

Plaintiff’s complaint for “Violation of Civil Rights, Tampering With Court
Documents, Defamation of Character” consists of two sentences:
1. Case number 11-2786/2785-STA, Pyramid Used Cars, was filed September
12, 2011, process has been hindered, causing me great hardship.
Plaintiff prays for payment for compensatory damages for the maximum
amount allowed.
(D.E. 1.) The Magistrate Judge has recommended that the complaint be dismissed prior to
service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim
on which relief may be granted. Having reviewed the complaint and the law, the Court
agrees with the Magistrate Judge’s recommendation. The issuance of a more detailed written
opinion is unnecessary. Therefore, the Court ADOPTS the report and recommendation of
the Magistrate Judge and hereby DISMISSES this case for failure to state a claim on which
relief may be granted, pursuant to § 1915(e)(2)(B)(ii).
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should she 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.”

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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.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by
Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is,
therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal, she 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

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

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