Moneyham v. Practer

Filing 11


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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ DESIREE MONEYHAM, ) ) Plaintiff, ) ) v. ) 2:17-cv-02068-STA-tmp ) ANTHONY PRACTER, ) ) Defendant. ) ______________________________________________________________________________ ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL ______________________________________________________________________________ On February 1, 2017, Plaintiff instituted this pro se action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) She also filed a motion for leave to proceed in forma pauperis, which the United States Magistrate Judge granted. (ECF No. 7.) On March 9, 2017, the Magistrate Judge directed Plaintiff to file an amended complaint. (ECF No. 8.) To date, Plaintiff has not done so. On May 2, 2017, the United States Magistrate Judge filed a report and recommendation recommending that the Court dismiss Plaintiff’s complaint sua sponte for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (ECF No. 10.) No objection has been filed. Accordingly, the report and recommendation for sua sponte dismissal of this matter is ADOPTED, and the case is hereby DISMISSED. The Court must also consider whether Plaintiff may appeal this decision in forma pauperis. A non-prisoner may seek pauper status on appeal pursuant to Federal Rule of Appellate Procedure 24(a). See Callihan v. Schneider, 178 F.3d 800, 803–04 (6th Cir. 1999). If 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,” the plaintiff must file a motion to proceed in forma pauperis in the Court of Appeals, regardless of whether pauper status was granted in the district court action. Fed. R. App. P. 24(a). In evaluating whether an appeal is taken in “good faith,” the Court considers whether the litigant seeks appellate review of any non-frivolous issue. Coppedge v. United States, 369 U.S. 438, 445 (1962). The same reasons that lead the Court to dismiss this case for failure to state a claim also warrant the conclusion that an appeal would not be taken in good faith. The Court hereby CERTIFIES that any appeal in this matter by Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is DENIED. If Plaintiff files a notice of appeal, she must pay the full $505.00 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. IT IS SO ORDERED this 31st day of May, 2017. s/ S. Thomas Anderson S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE 2

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