Bordages v. United States Justice Dept. et al

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS FOR SUA SPONTE DISMISSAL. Signed by Judge S. Thomas Anderson on 12/18/2015. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
JAMES HARRY HERBERT
BORDAGES,
Plaintiff,
v.

No. 15-2708-STA-dkv

UNITED STATES JUSTICE DEPT.,
et al.,
Defendants.
______________________________________________________________________________
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
______________________________________________________________________________
Before the Court is the United States Magistrate Judge’s Report and Recommendation
that the complaint in this matter be dismissed sua sponte. (ECF No. 4) The Magistrate Judge
submitted her Report and Recommendation on November 5, 2015. Objections to the Report and
Recommendation were due within fourteen (14) days of the entry of the Report. To date
Plaintiff has filed no objections to the Magistrate Judge’s Report although he did file a notice of
appeal with the Sixth Circuit Court of Appeals. (ECF No. 5.) Having reviewed the Magistrate
Judge’s Report and Recommendation de novo and the entire record of the proceedings, the Court
hereby ADOPTS the Report, and this matter is DISMISSED.
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).1 Rule 24(a) provides that if a party seeks pauper status on
1

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

appeal, he must first file a motion in the district court, along with a supporting affidavit.2
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.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 frivolous.5 It
would be inconsistent for a district court to determine that a complaint should be dismissed as
time-barred by the applicable statute of limitations but has sufficient merit to support an appeal
in forma pauperis.6 The same considerations that lead the court to dismiss this case sua sponte
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 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. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: December 18, 2015

2

Fed. R. App. P. 24(a)(1)
Fed. R. App. P. 24(a)(4)-(5)
4
Coppedge v. United States, 369 U.S. 438, 445 (1962)
5
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 documents intended for filing in the
Sixth Circuit.
3

2