Currington v. Juneau (INMATE 4)

• Court: District Court, M.D. Alabama
• Decided: December 13, 2024
• Docket: 1:22-cv-00518
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

DeANDRE D. CURRINGTON, ) ) Plaintiff, ) ) v. ) CASE NO. 1:22-CV-518-WKW ) [WO] ) COMMANDER JUNEAU, ) DEPUTY CHIEF BRYAN, and ) DUSTIN R. FOLK, Cpl., ) ) Defendants. )

MEMORANDUM OPINION AND ORDER

Before the court are Plaintiff’s pro se motion for permission to appeal (Doc. # 60), notice of appeal (Doc. # 63), and motion for leave to appeal in forma pauperis (Doc. # 70), all three of which were docketed in October 2024. Because the notice of appeal is untimely, regardless of whether it is considered filed through Doc. # 60 or Doc. # 63, it is construed as containing a motion for extension of time to appeal. The motions are due to be denied. I. BACKGROUND Some background is helpful for context. On November 3, 2022, the Magistrate Judge directed Plaintiff to pay an initial partial filing fee of $4.00 by November 15, 2022, or suffer dismissal of his action. (Doc. # 13 at 2–3.) After Plaintiff failed to pay the $4.00 installment by the court-ordered deadline, the Magistrate Judge filed a Recommendation for dismissal of the action without

prejudice. No objections were filed, and on December 28, 2022, this court adopted the Magistrate Judge’s Recommendation and dismissed the action without prejudice. (Doc. # 16.) Final judgment also was entered on December 28, 2022. (Doc. # 17.)

Plaintiff later filed a pro se notice of appeal with the Eleventh Circuit. (Docs. # 18, 24, 26), but the Eleventh Circuit dismissed the appeal for lack of prosecution. (Doc. # 46.) Now, for the second time, Plaintiff is attempting to appeal the December 28, 2022 final judgment, and he is seeking to do so in forma pauperis.

(Docs. # 60, 63, 70.) II. DISCUSSION A. Motion for an Extension of Time to Appeal and Motion for Permission to Appeal

As stated, because the notice of appeal is untimely, regardless of whether it is considered filed through Doc. # 60 or Doc. # 63, it is construed as containing a motion for extension of time to appeal. For the reasons stated below, both the motion for extension of time to appeal and the motion for permission to appeal will be denied.

Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal “must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Under Rule 4(a)(5)(A)(i), a district court may extend the time to file a notice of appeal “if . . . a party so moves no later than 30 days after the time prescribed by this Rule 4(a)

expires” and “shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(i)–(ii). Plaintiff seeks to appeal for a second time the final judgment entered on

December 28, 2022. His attempt to file an appeal again in October 2024 is untimely, as it falls well outside the thirty-day period for requesting an extension of time to file an appeal. Based on the untimeliness of the notice of appeal, the motion for extension of time to appeal and motion for permission to appeal will be denied.

B. Motion for Leave to Appeal in Forma Pauperis 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.” In

making this determination as to good faith, the court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit,” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 1981) (per curiam).

Applying this standard, the court certifies that Plaintiff’s untimely appeal is frivolous and not taken in good faith. Plaintiff’s motion for leave to appeal in forma pauperis, therefore, will be denied. III. CONCLUSION Based on the foregoing, it is ORDERED that Plaintiff’s pro se motion for

permission to appeal (Doc. # 60), motion for an extension of time to appeal (Doc. # 63), and motion for leave to appeal in forma pauperis (Doc. # 70) are DENIED. DONE this 13th day of December, 2024.

/s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE