Durham v. Alco Management for Breezy Point Apartments

Filing 8

ORDER adopting 7 Report and Recommendation and Certifying an Appeal would not be Taken in Good Faith. Signed by Judge Mark S. Norris on 5/8/19. (Norris, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DISTRICT

MICHAELA DURHAM,
Plaintiff,
v.

No. 2:19-cv-02243-MSN-tmp

ALCO MANAGEMENT FOR BREEZY
POINT APARTMENTS,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION AND
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

Before the Court is the Magistrate Judge’s Report and Recommendation, filed April 23,
2019. (ECF No. 7.) The Report recommends that Plaintiff’s pro se complaint be dismissed sua
sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and for lack of subject matter jurisdiction.
Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by
permitting the assignment of district court duties to magistrate judges. See United States v. Curtis,
237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869–70 (1989));
see also Baker v. Peterson, 67 Fed.Appx. 308, 310 (6th Cir. 2003). For dispositive matters, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §636(b)(1). After reviewing the
evidence, the court is free to accept, reject, or modify the magistrate judge’s proposed findings or
recommendations. 28 U.S.C. § 636(b)(1). The district court is not required to review—under a
de novo or any other standard—those aspects of the report and recommendation to which no

objection is made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt
the magistrate judge’s findings and rulings to which no specific objection is filed. See id. at 151.
The deadline to object to the Report has passed, and neither Plaintiff nor Defendant filed
objections. The Court has reviewed the Report for clear error and finds none. For the foregoing
reasons, the Court ADOPTS the Report and sua sponte DISMISSES Plaintiff’s pro se complaint.
This Court granted Plaintiff’s motion to proceed in forma pauperis on April 23, 2019.
(ECF No. 6.) 28 U.S.C. § 1915(a)(3) provides that an appeal may not be taken in forma pauperis
if the trial court certifies in writing that an appeal would not be taken in good faith. The good faith
standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal is
not taken in good faith if the issue presented is frivolous. Id. The same considerations that lead
this Court to dismiss Plaintiff’s complaint sua sponte also compel this Court to conclude that if
Plaintiff appeals, then that appeal would not be taken in good faith. It is therefore, CERTIFIED,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal in this matter by Plaintiff would not be taken in
good faith and Plaintiff could not proceed on appeal in forma pauperis.
IT IS SO ORDERED, this 8th day of May, 2019.
s/ Mark S. Norris
MARK S. NORRIS
UNITED STATES DISTRICT JUDGE

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