West v. Jackson

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION BEVERLEY WEST PLAINTIFF v. Civil No. 3:22-CV-03026-TLB CHARLES SCOTT JACKSON and DEFENDANTS CIRCUIT COURT OF CARROLL COUNTY, ARKANSAS MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION This is a civil rights action filed under 42 U.S.C. § 1983 . Pursuant to the provisions of 28 U.S.C. § 636 (b)(1) and (3), the Honorable Timothy L. Brooks, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. Currently before the Court is Plaintiff’s Motion for Leave to Appeal in forma pauperis. (ECF No. 13). I. BACKGROUND Plaintiff filed her Complaint on May 18, 2022. (ECF No. 2). The undersigned previously conducted a pre-service screening of Plaintiff’s Complaint pursuant to 28 U.S.C § 1983 and recommended that Plaintiff’s Complaint be dismissed for frivolousness and/or failure to state claims upon which relief may be granted. (ECF No. 5). In making that recommendation, the undersigned noted that this is the third time Plaintiff has filed a § 1983 case attempting to bring a criminal cause of action under 18 U.S.C. § 242 , and the second time she has done so against Judge Jackson, a state circuit court judge. It was further noted that Plaintiff’s prior cases were also dismissed as frivolous. (Id. at 4). On July 20, 2022, Judge Brooks adopted this report and recommendation. (ECF No. 7). Noting Plaintiff’s “practice of filing frivolous, meritless pleadings” and her waste of the Court’s valuable resources, Judge Brooks instructed the Clerk of Court to file no further pro se complaints from her unless they have been screened and approved by Chambers. (Id. at 2). Plaintiff filed a Notice of Appeal to the Eighth Circuit Court of Appeals on July 19, 2022 (ECF No. 8), and she has now filed a Motion for Leave to Appeal in forma pauperis (“IFP”). (ECF No. 13). II. LEGAL STANDARD 28 U.S.C. § 1915 governs applications for leave to appeal in forma pauperis. 28 U.S.C. § 1915 (a)(1) provides: “. . . any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefore, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.” 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.” “Good faith,” within the meaning of the statute, must be judged by an objective and not subjective standard, and a litigant’s good faith is demonstrated when he seeks appellate review of any issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). To proceed in forma pauperis is a privilege and not a right. Green v. Wyrick, 428 F.Supp. 728, 731 (W.D. Mo. 1976). “A plaintiff, even though of small means, could reasonably be asked to some small degree to ‘put his money where his mouth is,’ it being all too easy to file suits . . . if it costs nothing whatever to do so.” Id. at 731-32 . The decision of whether to grant or deny in forma pauperis status under § 1915 “is within the sound discretion of the trial court.” Lee v. McDonald’s Corp., 231 F.3d 456, 458 (8th Cir. 2000) (internal citation omitted). 28 U.S.C. §§ 1915 (e)(2)(B)(i-iii) provides that on review, the court “shall dismiss the case at any time if the court determines that . . . the action or appeal – (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief from a defendant who is immune from such relief.” III. ANALYSIS As discussed in the Report and Recommendation and in the Order adopting the same, Plaintiff’s claims in this case are frivolous and/or fail to state claims upon which relief may be granted. As such, Plaintiff’s appeal is frivolous and, therefore, not taken in good faith. IV. CONCLUSION Accordingly, it is recommended that Plaintiff’s Motion for Leave to Appeal in forma pauperis (ECF No. 13) be DENIED. The parties have fourteen (14) days from receipt of the Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636 (b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 26th day of July 2022. /s/ HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE