Rowan v. Tennessee Carriers et al

Filing 4

ORDER ADOPTING REPORT AND RECOMMENDATION 3 , 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 1/14/14. (Todd, James)

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

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No. 13-2964-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

On December 12, 2013, Plaintiff Brent A. Rowan, a resident of Memphis, Tennessee, filed
a pro se civil complaint on the form used for commencing an action pursuant to 42 U.S.C. § 1983,
accompanied by a motion for leave to proceed in forma pauperis. (Docket Entries 1 & 2.) On
December 26, 2013, United States Magistrate Judge Charmiane G. Claxton issued an order granting
leave to proceed in forma pauperis and a Report and Recommendation (“R&R”) in which she
recommended the case be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B).1 (D.E. 3.)
Objections to the R&R were due on or before January 13, 2014. However, Plaintiff has filed no
objections.
Plaintiff alleges that on an unspecified date he called the Defendant, Tennessee Carriers, to
pick him up at a doctor’s office. After Plaintiff got on the van, about twenty more people attempted
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.

to board the van at a subsequent stop. Plaintiff states that he changed his seating twice and then
moved to the back of the vehicle. One of the other passengers sat on Plaintiff’s food. Plaintiff does
not feel as though he was accommodated for that trip. He also states that the Defendant was late for
a pickup.
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. Specifically, the Magistrate Judge found that Plaintiff has failed to alleged how the
Defendant acted under color of state law or how the Defendant violated his rights under the
Constitution and laws of the United States. 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).

2

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 fee2 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

2

Effective December 1, 2013, the appellate filing fee increased to $500. The district court also charges a
$5 fee for filing the notice of appeal, pursuant to 28 U.S.C. § 1917.
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 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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