COBB v. BENJAMIN

S.D. Indiana

COBB v. BENJAMIN

DecidedJanuary 26, 2021

Docket1:20-cv-01303

StatusUnknown

This text of COBB v. BENJAMIN (COBB v. BENJAMIN) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

COBB v. BENJAMIN, (S.D. Ind. 2021).

Pincite

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MARSHALL COBB, SR., ) ) Plaintiff, ) ) v. ) No. 1:20-cv-01303-JPH-DML ) BENJAMIN Judge, ) KATHLEEN BURNS Prosecutor, ) CURTIS HILL Attorney General, ) LORETTA RUSH Judge, ) KIT C. DEAN CRANE Judge, ) BARBARA HARCOURT Judge, ) STATE OF INDIANA, ) NANCY VAIDIK Judge, ) ) Defendants. )

ORDER DENYING REQUEST TO PROCEED ON APPEAL IN FORMA PAUPERIS

Plaintiff Marshall Cobb seeks leave to proceed on appeal without prepaying the appellate fees. Dkt. [28]. However, an appeal may not be taken in forma pauperis if the trial court certifies that the appeal is not taken in "good faith." 28 U.S.C. § 1915(a)(3). "Good faith," in the context of § 1915(a)(3), refers to the "more common legal meaning of the term, in which to sue in bad faith means merely to sue on the basis of a frivolous claim." Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). In other words, § 1915(a)(3)'s "good faith" determination is not about the plaintiff's sincerity in requesting appellate review. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). A sincere litigant still lacks objective "good faith" under § 1915(a)(3) if his claim is one that "no reasonable person could suppose to have any merit." Lee, 209 F.3d at 1026. Under this standard, Mr. Cobb's request to appeal in forma pauperis must be denied. He seeks to appeal the Court's judgment that this case is dismissed without prejudice for failure to state a claim. But as the Court's dismissal order explained, Mr. Cobb's show cause response failed to remedy the deficiencies identified in the Court's screening order. Dkt. 15. Mr. Cobb's complaint and show cause response both failed to state a plausible claim. Dkt. 1; dkt. 13. The Court was therefore required to dismiss this case. See Fed. R. Civ. P. 12(h)(3); Evergreen Square of Cudahy v. Wis. Hous. & Econ. Dev. Auth., 776 F.3d 463, 465 (7th Cir. 2015). There is no objectively reasonable argument that Mr. Cobb's proposed appeal has merit, so this appeal is not taken in "good faith," and the motion for leave to proceed on appeal in forma pauperis, dkt. [28], is DENIED. SO ORDERED. Date: 1/26/2021 SJamu Patrick hawlove James Patrick Hanlon United States District Judge Distribution: Southern District of Indiana

MARSHALL COBB, SR. 129571 NEW CASTLE - CF NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels 1000 Van Nuys Road NEW CASTLE, IN 47362

Free access — add to your briefcase to read the full text and ask questions with AI

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MARSHALL COBB, SR., ) ) Plaintiff, ) ) v. ) No. 1:20-cv-01303-JPH-DML ) BENJAMIN Judge, ) KATHLEEN BURNS Prosecutor, ) CURTIS HILL Attorney General, ) LORETTA RUSH Judge, ) KIT C. DEAN CRANE Judge, ) BARBARA HARCOURT Judge, ) STATE OF INDIANA, ) NANCY VAIDIK Judge, ) ) Defendants. )

ORDER DENYING REQUEST TO PROCEED ON APPEAL IN FORMA PAUPERIS

Plaintiff Marshall Cobb seeks leave to proceed on appeal without prepaying the appellate fees. Dkt. [28]. However, an appeal may not be taken in forma pauperis if the trial court certifies that the appeal is not taken in "good faith." 28 U.S.C. § 1915(a)(3). "Good faith," in the context of § 1915(a)(3), refers to the "more common legal meaning of the term, in which to sue in bad faith means merely to sue on the basis of a frivolous claim." Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). In other words, § 1915(a)(3)'s "good faith" determination is not about the plaintiff's sincerity in requesting appellate review. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). A sincere litigant still lacks objective "good faith" under § 1915(a)(3) if his claim is one that "no reasonable person could suppose to have any merit." Lee, 209 F.3d at 1026. Under this standard, Mr. Cobb's request to appeal in forma pauperis must be denied. He seeks to appeal the Court's judgment that this case is dismissed without prejudice for failure to state a claim. But as the Court's dismissal order explained, Mr. Cobb's show cause response failed to remedy the deficiencies identified in the Court's screening order. Dkt. 15. Mr. Cobb's complaint and show cause response both failed to state a plausible claim. Dkt. 1; dkt. 13. The Court was therefore required to dismiss this case. See Fed. R. Civ. P. 12(h)(3); Evergreen Square of Cudahy v. Wis. Hous. & Econ. Dev. Auth., 776 F.3d 463, 465 (7th Cir. 2015). There is no objectively reasonable argument that Mr. Cobb's proposed appeal has merit, so this appeal is not taken in "good faith," and the motion for leave to proceed on appeal in forma pauperis, dkt. [28], is DENIED. SO ORDERED. Date: 1/26/2021 SJamu Patrick hawlove James Patrick Hanlon United States District Judge Distribution: Southern District of Indiana

MARSHALL COBB, SR. 129571 NEW CASTLE - CF NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels 1000 Van Nuys Road NEW CASTLE, IN 47362

Cite This Page — Counsel Stack

Bluebook (online)

COBB v. BENJAMIN, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-benjamin-insd-2021.

Opinion

Related

Cite This Page — Counsel Stack