Bowers v. Coffee et al

Filing 11

ORDER OVERRULING PLAINTIFF'S OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION FOR DISMISSAL, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. ( 7 8 ) Signed by Judge James D. Todd on 10/13/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JEFFERY BOWERS,
Plaintiff,
VS.
LEE V. COFFEE, ET AL.,
Defendants.

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No. 15-2538-JDT-dkv

ORDER OVERRULING PLAINTIFF’S OBJECTIONS,
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 August 12, 2015, Plaintiff Jeffery Bowers, a resident of St. Louis, Missouri, filed a pro
se civil complaint and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) United States
Magistrate Judge Diane K. Vescovo granted leave to proceed in forma pauperis on August 18, 2015.
(ECF No. 5.) On September 2, 2015, Plaintiff filed an amended complaint (ECF No. 6.) that
superseded the original complaint. Plaintiff sued the cities of Memphis, Bartlett and Covington,
Tennessee, along with their police departments; Memphis Police Director Tony Armstrong and
Bartlett Police Officer T. McCollum; the Shelby County Sheriff’s Department; former Shelby
County District Attorney Bill Gibbons; Deborah Owen, with the Shelby County District Attorney’s
Office; and Shelby County Criminal Court Judges Lee V. Coffee and Chris Craft.
On September 16, 2015, Magistrate Judge Vescovo issued a Report and Recommendation
(“R&R”) in which she recommended dismissing the action sua sponte. (ECF No. 8.) On October
5, 2015, Plaintiff filed a timely objection. (ECF No. 9.)

Magistrate Judge Vescovo found that Plaintiff’s amended complaint fails to state a claim on
which relief may be granted. She determined the claims against Defendants Coffee and Craft are
barred by absolute judicial immunity and that his claims against Defendant Owen are barred by
prosecutorial immunity. The Magistrate Judge also noted the amended complaint contains no
factual allegations against any of the other named Defendants. Although Plaintiff vigorously objects
to the finding that his claims against Defendant Coffee are barred, the vague statements in his
various documents about Defendant Coffee’s lack of jurisdiction over the charges brought against
Plaintiff for driving on a revoked or suspended license are insufficient to overcome absolute judicial
immunity.
The Court agrees with Magistrate Judge Vescovo’s recommendation for dismissal.
Accordingly, Plaintiff’s objections are overruled, and the R&R is ADOPTED. Pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii)-(iii), the complaint is hereby DISMISSED for failure to state a claim and
as barred by judicial immunity.
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 Rule
24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a) provides that
if a party seeks pauper status on appeal, he must first file a motion in the district court, along with
a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the
district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to
appeal in forma pauperis, the party must file his motion to proceed in forma pauperis in the Court
of Appeals. Fed. R. App. P. 24(a)(4)-(5).

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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
and as barred by judicial immunity 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. 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.
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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