Rowan v. Memphis Area Transit Authority et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION, ORDER OF DISMISSAL, ORDER CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 6 . Signed by Judge James D. Todd on 10/22/13. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BRENT A. ROWAN,
Plaintiff,
VS.
MEMPHIS AREA TRANSIT
AUTHORITY, ET AL.,
Defendants.

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No. 13-2432-JDT-dkv

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

Plaintiff Brent A. Rowan, a resident of Memphis, Tennessee, filed a pro se civil complaint
on June 14, 2013, and a motion for leave to proceed in forma pauperis. (Docket Entries 1 & 2.)
United States Magistrate Judge Charmiane G. Claxton subsequently issued an order granting leave
to proceed in forma pauperis. (D.E. 4.)1 On October 1, 2013, the Magistrate Judge issued a Report
and Recommendation in which she recommended the case be dismissed sua sponte pursuant to 28
U.S.C. § 1915(e)(2)(B). (D.E. 6.)
Plaintiff alleges that on June 6, 2013, he was attempting to exit a Memphis Area Transit
Authority bus when his progress was impeded by a group of fellow passengers who were also
exiting the bus. He contends he almost lost his balance and that the bus driver failed to ask the
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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.

group of passengers to yield to him. He appears to assert claims under Title II of the Americans
with Disabilities Act, 42 U.S.C. §§ 12131 et seq., and/or 42 U.S.C. § 1983.
Magistrate Judge Claxton has recommended 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 that

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 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, 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 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.

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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, he 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.2
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 he 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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