Gipson v. Ozment et al

Filing 9


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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ ANGELA GIPSON, Plaintiff, v. No. 17-2086-STA-dkv JOSEPH OZMENT, et al., Defendants. ______________________________________________________________________________ ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL ______________________________________________________________________________ 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. 7.) The Magistrate Judge submitted her report and Recommendation on February 14, 2017. 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. 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 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 1 See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999) 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 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 for lack of subject matter jurisdiction 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, 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.7 IT IS SO ORDERED. 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 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 2 S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE Date: April 6, 2017 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.

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