Taylor v. Memphis Police Department et al

Filing 15

ORDER ADOPTING 14 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH. Signed by Judge James D. Todd on 9/30/14. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

CLAUDETTE TAYLOR,
Plaintiff,
VS.
MEMPHIS POLICE DEPARTMENT,
Defendant.

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No. 13-2641-JDT-dkv

ORDER ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

On September 12, 2014, Magistrate Judge Diane K. Vescovo issued a report and
recommendation [DE# 14] that Defendants’ motion for judgment on the pleadings [DE# 13]
be construed as a motion to dismiss for failure to state a claim upon which relief can be
granted and that the motion be granted. Plaintiff did not respond to the motion to dismiss and
has not filed objections to the report and recommendation.
Having carefully reviewed the record and the controlling case law, the court agrees
with the Magistrate Judge’s recommendation. Because the Magistrate Judge thoroughly
explained her decision and because an issuance of a more detailed written opinion would be
unnecessarily duplicative and would not enhance this court’s jurisprudence, the court
ADOPTS the report and recommendation for the reasons set forth by Magistrate Judge
Vescovo, and the case is hereby DISMISSED.

The court must also consider whether Plaintiffs 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.”
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 district
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
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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.1
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 motions intended for filing in the
Sixth Circuit.

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