Durrett v. GMF-Serenity Towers, LLC et al

Filing 6

ORDER ADOPTING 5 REPORT AND RECOMMENDATION FOR DISMISSAL, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 10/21/14. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
EUNICE PAYNE DURRETT,
Plaintiff,
VS.
GMF-SERENITY TOWERS, LLC,
ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 14-2732-JDT-dkv

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

On September 18, 2014, Plaintiff Eunice Payne Durrett, a resident of Memphis,
Tennessee, filed a pro se civil complaint pursuant to 42 U.S.C. § 1983, accompanied by a
motion for leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) United States Magistrate
Judge Diane K. Vescovo subsequently granted leave to proceed in forma pauperis. (ECF
No. 4.)

On September 30, 2014, Magistrate Judge Vescovo 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). (ECF No. 5.) Objections to the Report and Recommendation
were due within fourteen days. However, Plaintiff has filed no objections.
In the complaint, Plaintiff alleges that she “requested reasonable accommodations to
move to a lower floor several times away from noise because living on the 8th floor was

aggrevating [sic] her back.” (ECF No. 1 at 2.) She seeks compensation “for all the pain and
suffering Mgmt put me through for no reason at all. Writ [sic] me a check to cover the
costs.” (Id. at 3.)
Magistrate Judge Vescovo 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, Magistrate Judge Vescovo found that Plaintiff
has failed to alleged how the Defendants acted under color of state law or how the
Defendants violated her 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 R&R 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 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.”

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, she 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.1
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

1

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 documents and motions intended
for filing in the Sixth Circuit.

3