Terrell v. State of Tennessee Department of Mental Health & Subtance Abuse Services et al

Filing 9

ORDER OF DISMISSAL AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH. Signed by Chief Judge S. Thomas Anderson on 4/5/17. (Anderson, S.)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
LORI E. TERRELL,
Plaintiff,
VS.

No. 17-2085-STA-dkv

STATE OF TENNESSEE
DEPARTMENT OF MENTAL
HEALTH & SUBSTANCE ABUSE
SERVICES, et al.,
Defendants.

ORDER OF DISMISSAL
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

Plaintiff Lori E. Terrell filed this action on February 6, 2017, along with a motion
for leave to proceed in forma pauperis. (ECF Nos. 1, 2.) On February 9, 2017, the Court
denied the motion and directed Plaintiff to pay the fill $400 civil filing fee. (ECF No. 7.)
Plaintiff was warned that failure to do so would result in dismissal of the action without
further notice, pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute.
(Id. at p. 2.)
Plaintiff has not paid the filing fee within the requisite time or taken any other
action in this matter. Accordingly, the complaint is hereby DISMISSED for failure to
prosecute.

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).1 Rule 24(a) provides that if a party seeks pauper status on
appeal, she 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 her
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 The
same considerations that lead the Court to grant dismiss the action 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 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.6

1

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

2

Fed. R. App. P. 24(a)(1).

3

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

4

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

5

Id.

6

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 she is specifically instructed to do so, Plaintiff should not send to
this Court copies of documents intended for filing in the Sixth Circuit.

2

The Clerk is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: April 5, 2017

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