Howe v. Officer John Doe #1 et al

Filing 141

ORDER denying 140 Motion for Leave to Appeal in forma pauperis.(Signed by Judge George C Hanks, Jr) Parties notified. Copy to USCA. (dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
PAUL K. HOWE,
Plaintiff,
VS.
OFFICER JOHN DOE #1, et al,
Defendants.

January 05, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:12-CV-238
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ORDER

The plaintiff, Paul K. Howe, is a former inmate of the Texas Department of
Criminal Justice (“TDCJ”) (TDCJ #01473851); and while he was incarcerated he filed
this action under 42 U.S.C. § 1983, alleging that correctional officers failed to protect
him from another inmate and retaliated against him. After Howe filed a more definite
statement of his claims (Dkt. 16), the remaining defendants filed a motion to dismiss
under Federal Rule of Civil Procedure 12(c) (Dkt. 71), to which Howe did not respond.
Judge Hoyt stayed the case pending a ruling on the defendants’ motion (Dkt. 75). After
the case was reassigned to the undersigned judge, the Court lifted the stay and granted the
Rule 12(c) motion as to the John Doe defendants (Dkt. 127). The Court denied the Rule
12(c) motion as to Major Felix Gordon and ordered Gordon to file a motion for summary
judgment, if he wished, on or before January 15, 2018 (Dkt. 127 at p. 11). Howe filed a
notice of appeal (Dkt. 132).
Howe requests leave to proceed in forma pauperis on appeal. That request (Dkt.
140) is denied. “An appeal may not be taken in forma pauperis if the trial court certifies

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in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3) (italics added); see
also FED. R. APP. P. 24(a)(3)(A). As defined by the applicable legal standard, this appeal
is not taken in good faith. There is no final judgment in this case; the Court has only
entered non-appealable interlocutory orders. The applicable test for determining good
faith is an objective one concerned only with whether Howe “seeks appellate review of
any issue not frivolous”— Coppedge v. United States, 369 U.S. 438, 445 (1962)—and an
appeal from a non-appealable order is frivolous. United States v. Powell, 468 F.3d 862,
863 (5th Cir. 2006).
Howe’s motion for leave to proceed in forma pauperis on appeal (Dkt. 140) is
DENIED. On a related issue, the District Clerk has informed this Court that other
pending motions are preventing the expeditious forwarding of the appellate record to the
Fifth Circuit. All other motions pending in this case are DENIED without prejudice to
refiling.
The Clerk of this Court shall send a copy of this Order to the parties and to the
Clerk of Court of the United States Court of Appeals for the Fifth Circuit. The Fifth
Circuit docket number is 17-41199.
SIGNED at Galveston, Texas, this 5th day of January, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

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