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Easterling v. Second District Court of Appeals, Greene County

United States District Court, Sixth Circuit

September 9, 2013

WARREN EASTERLING, Petitioner[1],
v.
SECOND DISTRICT COURT OF APPEALS, GREENE COUNTY, Respondent.

REPORT AND RECOMMENDATIONS REGARDING IN FORMA PAUPERIS STATUS ON APPEAL

MICHAEL R. MERZ, Magistrate Judge.

This case is before the Court on the filing of Petitioner's Notice of Appeal (Doc. No. 18, filed in the Sixth Circuit on August 12, 2013, and transferred to this Court on September 6, 2013). Petitioner has not tendered the required $455 filing fee and therefore, presumably, seeks to appeal in forma pauperis, even though he has not requested that stauts for appeal.

The Sixth Circuit Court of Appeals requires that all district courts in the Circuit determine, in all cases where the appellant seeks to proceed in forma pauperis, whether the appeal is frivolous . Floyd v. United States Postal Service, 105 F.3d 274 (6th Cir. 1997). 28 U.S.C. § 1915(a)(3) provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."

Plaintiff was granted leave to proceed in forma pauperis in this Court, but that determination is not conclusive, since the appeal involves a separate proceeding. Slack v. McDaniel, 529 U.S. 473 (2000); Spruill v. Temple Baptist Church, 141 F.2d 137, 138 (D.C. Cir. 1944). If the party was permitted to proceed in forma pauperis in the district court, the party may proceed on appeal in forma pauperis without further authorization unless the district court certifies in writing that an appeal would not be taken in good faith, or the party is not otherwise entitled to proceed as a pauper. See Fed. R.App. P. 24(a)(3). If the district court denies the individual leave to proceed in forma pauperis on appeal, the party may file, within thirty days after service of the district court's decision as prescribed for by Fed. R.App. P. 24(a)(4), a motion with the Court of Appeals for leave to proceed as a pauper on appeal. The party's motion must include a copy of the affidavit filed in the district court and the district court's statement as to its reasons for denying pauper status on appeal. See Fed. R.App. P. 24(a)(5). Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), holding Floyd v. United States Postal Service, 105 F.3d 274 (6th Cir. 1997), superseded in part by 1998 amendments to Fed. R.App. P. 24.

The test under § 1915(a) for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue not frivolous. Coppedge v. United States, 369 U.S. 438 (1962). Thus an appellant's good faith subjective motivation for appealing is not relevant, but rather whether, objectively speaking, there is any non-frivolous issue to be litigated on appeal. This test will often be difficult to apply in any conclusive manner at the district court level because only a bare notice of appeal is before the District Court; it will often be unable to evaluate the issues appellant intends to raise on appeal because the appellant has no occasion to reveal those issues in a notice of appeal.

In the Report and Recommendations adopted by this Court in dismissing this case, the Magistrate Judge found the Amended Complaint to be frivolous under the same standard to be applied here, to it, that it lacks an arguable basis either in law or in fact (Report, Doc. No. 10, PageID 245-246, citing Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989).) The Amended Complaint sought injunctive or mandamus relief against the judges of the Ohio Second District Court of Appeals to compel them to broaden the scope of Easterling's appeal in their Case No. 12-CA-52 and declare Ohio Revised Code § 2323.52, the Ohio vexatious litigator statute, unconstitutional. The Report found that our jurisdiction was barred by the Rooker-Feldman doctrine, citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 390 (6th Cir. 2002); In re Sun Valley Foods Co., 801 F.2d 186 (6th Cir. 1986); Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985) (Report, Doc. No. 19, PageID 247-248).

While Easterling has filed a bare Notice of Appeal without stating the issues he intends to raise, the Rooker-Feldman doctrine is very plainly applicable to this case. Therefore the Court should deny Easterling pauper status on appeal and ...


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