Bragorgos v. Riles et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE FOR SUMMARY JUDGMENT ADOPTING REPORT AND RECOMMENDATIONS 37 & 42 . Signed by Judge James D. Todd on 9/3/14. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
JOHN BRAGORGOS
Plaintiff,
VS.
BOBBY RILES, et al.,
Defendants.

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No. 13-2417-JDT-cgc

ORDER ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE FOR SUMMARY JUDGMENT

On August 14, 2014, Magistrate Judge Charmiane G. Claxton issued a report and
recommendation on the motion for summary judgment of Defendants Bobby Riles, Eric
Cook, Jamie Jenkins, and Helyen Keith [DE#s 37, 38]. Magistrate Judge Claxton has
recommended that Defendants’ motion for summary judgment be granted [DE# 42]. No
objections have been filed.
Therefore, Magistrate Judge Claxton’s report and recommendation is ADOPTED, and
Defendants’ motion is GRANTED. The clerk is DIRECTED to enter judgment accordingly.1
The court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he 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,

1

Defendant Ronnie Faulkner was dismissed from the action on December 3, 2013.

803-04 (6th Cir. 1999). Rule 24(a) provides that if a party seeks pauper status on appeal, he
must first file a motion in the district court, along with a supporting affidavit. Fed. R. App.
P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an
appeal would not be taken in good faith, or otherwise denies leave to appeal in forma
pauperis, the party must file his 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. The same considerations that lead the
court to grant summary judgment in this case 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, he must also pay the
full 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.2
IT IS SO ORDERED.

2

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 he is
specifically instructed to do so, Plaintiff should not send to this court copies of documents intended for filing in the
Sixth Circuit.

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

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