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Woods v. Wood

United States District Court, Eastern District of Michigan, Southern Division

May 28, 2015

ERIC TOBIAS WOODS, Petitioner,
v.
JEFFREY WOODS, Warden, Respondent.

ORDER DENYING PETITIONER’S MOTION TO PROCEED WITHOUT PREPAYING FEES OR COSTS ON APPEAL (DOC. #46)

GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

On March 30, 2015, the court denied petitioner’s motion for relief from judgment under Fed.R.Civ.P. 60(b)(4). Petitioner did not seek to proceed without prepaying fees or costs. Subsequently, petitioner appealed the court’s denial of his Rule 60(b) motion. Now before the court is petitioner’s letter inquiry about his pauper status, which the court construes as a motion to proceed in forma pauperis on appeal. (Doc. #29).

Under 28 U.S.C. § 1915(a)(3), an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not 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 led the court to deny plaintiff’s motion for relief from judgment also support the conclusion that an appeal would be frivolous. It is therefore CERTIFIED, under 28 U.S.C. § 1915(a)(3), that any appeal by plaintiff is not taken in good faith. As such, he may not proceed in forma pauperis on appeal. His motion is therefore DENIED.

Because petitioner has already filed a notice of appeal, the Court of Appeals for the Sixth Circuit has held that a certification that an appeal is not taken in good faith does not affect an indigent prisoner plaintiff's ability to take advantage of the installment procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610–11 (6th Cir. 1997). Therefore, petitioner is instructed that if he wishes to take advantage of the installment procedures for paying the appellate filing fee, he must comply with the procedures set out in McGore and § 1915(b).

IT IS SO ORDERED.


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