Burnside v. The University of Memphis et al
Filing
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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 5 . Signed by Judge James D. Todd on 9/24/15. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ANDREA BURNSIDE,
Plaintiff,
VS.
UNIVERSITY OF MEMPHIS, ET AL.,
Defendants.
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No. 15-2193-JDT-tmp
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 March 20, 2015, Plaintiff Andrea Burnside, a resident of Memphis, Tennessee,
filed a pro se complaint accompanied by a motion to proceed in forma pauperis. (ECF Nos.
1 & 2.) United States Magistrate Judge Tu M. Pham subsequently granted leave to proceed
in forma pauperis. (ECF No. 4.) On August 12, 2015, Magistrate Judge Pham issued a
Report and Recommendation (“R&R”) in which he recommended the case be dismissed sua
sponte for failure to state a claim. (ECF No. 5.) Objections to the R&R were due on or
before August 31, 2015. See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a), (d).
However, Plaintiff has filed no objections.
Plaintiff has sued the University of Memphis and several employees thereof, alleging
that her employment with the University was terminated in violation of her constitutional
rights. Plaintiff also asserts various claims under Tennessee law. The Magistrate Judge has
recommended dismissal prior to service on the Defendant on the ground that all of Plaintiff’s
claims are barred by the Eleventh Amendment’s grant of sovereign immunity. Having
reviewed the complaint and the law, the Court agrees with Magistrate Judge Pham’s
recommendation.
The issuance of a more detailed written opinion is unnecessary.
Therefore, for the reasons stated in the R&R, the complaint is hereby 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 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 court
to determine that a complaint should be dismissed prior to service on the defendants, but has
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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.
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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