State of Tennessee v. Grier

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH. Signed by Judge S. Thomas Anderson on 2/19/2016. (Anderson, S.)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
STATE OF TENNESSEE,
Plaintiff,
VS.
JOHN GRIER,
Defendant.

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No. 15-2398-STA-cgc

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

On August 25, 2015, Magistrate Judge Charmiane G. Claxton issued a report and
recommendation (ECF No. 11) that the pro se complaint that was filed in this matter be
dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and
(h)(3). Plaintiff has filed objections to the report and recommendation and a motion to
“stay the action.” (ECF No. 12.) Having carefully reviewed the record, the controlling
case law, and Plaintiff’s objections, the court agrees with the Magistrate Judge and
ADOPTS the report and recommendation for dismissal. Plaintiff’s motion to stay is
DENIED as moot.

In the present action, Plaintiff is attempting to remove his criminal case from the
Criminal Court of Shelby County pursuant to 28 U.S.C. § 1446.1 (ECF No. 1.) As noted
by Magistrate Judge Claxton, that statute provides for the removal of civil actions, not
criminal actions. Consequently, this Court lacks subject matter over Plaintiff’s cause of
action. Plaintiff has presented no facts or law that convince the Court otherwise.
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).2

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.3
The good faith standard is an objective one.4

The test for whether an appeal is

taken in good faith is whether the litigant seeks appellate review of any issue that is not

1

A defendant or defendants desiring to remove any civil action from a State court shall file in the
district court of the United States for the district and division within which such action is pending
a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and
containing a short and plain statement of the grounds for removal, together with a copy of all
process, pleadings, and orders served upon such defendant or defendants in such action.
28 U.S.C. § 1446(a).
2

See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999).

3

Fed. R. App. P. 24(a)(4)-(5).

4

Coppedge v. United States, 369 U.S. 438, 445 (1962).

2

frivolous.5 It would be inconsistent for the Court to determine that a complaint should be
dismissed prior to service on the defendant but has sufficient merit to support an appeal
in forma pauperis.6 The same considerations that lead the Court to dismiss this case 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 pay the 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.7
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: February 19, 2016

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Id.

6

See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983).

7

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 motions intended for filing in the Sixth Circuit.

3