Carter v. Skahan

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATION 5 , ORDER OF DISMISSAL, ORDER CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 3/27/14. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KAVIN M. CARTER,
Plaintiff,
VS.
PAULA SKAHAN,
Defendant.

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No. 13-2674-JDT-cgc

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 Kavin M. Carter, a resident of Memphis, Tennessee, filed a pro se civil
complaint on August 29, 2013, and a motion for leave to proceed in forma pauperis. (Docket
Entries 1 & 2.) United States Magistrate Judge Charmiane G. Claxton subsequently granted
leave to proceed in forma pauperis. (D.E. 4.)1 On March 7, 2014, Magistrate Judge Claxton
issued a Report and Recommendation (“R&R”) in which she recommended that the case be
dismissed sua sponte. (D.E. 5.) Objections to the R&R were due on or before March 24,
2014. See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d). However, Plaintiff has
filed no objections.
1

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.

Plaintiff sues Shelby County Criminal Court Judge Paula Skahan, alleging that she
violated his civil rights by issuing a warrant for his arrest only a few months after she had
previously recused herself from a case involving him on April 8, 2003. The Magistrate Judge
has recommended dismissal prior to service on the Defendant because Defendant Skahan is
entitled to judicial immunity. Having reviewed the complaint and the law, the Court agrees
with the Magistrate Judge’s recommendation.2 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)-(iii).
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 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.”
2

The Court also notes that Plaintiff’s claim is clearly barred by the one-year statute of limitations that is
applicable to claims under 42 U.S.C. § 1983 brought in Tennessee. See Tenn. Code Ann. § 28-3-104(a); Roberson
v. Tenn., 399 F.3d 792, 794 (6th Cir. 2005).

2

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, he must also pay the
full $505 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, Plaintiff should not send to this Court copies of documents and motions intended for
filing in the Sixth Circuit.

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