Deciantis v. Coyne-Fague

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

ANTHONY DECIANTIS : : v. : Ca. No. 20-00004-WES : PATRICIA COYNE-FAGUE, et. al. :

REPORT AND RECOMMENDATION

Lincoln D. Almond, United States Magistrate Judge

Pending before the Court are the Motions for Leave to Appeal In Forma Pauperis (“IFP”) filed by Anthony Deciantis. (ECF Nos. 19, 20, 21). Because I find that the appeal is groundless and thus not taken in good faith, I recommend that the District Court DENY the Motions. Plaintiff’s right to appeal in forma pauperis is governed by 28 U.S.C. §1915 which 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.” 28 U.S.C. § 1915(a)(3). “Because the good faith standard is an objective one, an appeal is deemed not taken in good faith if the issues presented are frivolous. An appeal is considered frivolous when it is based on an ‘indisputably meritless legal theory or factual allegations that are clearly baseless.’” Lyons v. Wall, No. 04-380, 2007 WL 2067661 at *1 (D.R.I. July 13, 2007) (internal citations omitted). In the present case, the Motion for Certificate of Appealability was denied by District Judge William E. Smith because Mr. Deciantis “failed to make a substantial showing of the denial of a constitutional right as to any claim, as required by 28 U.S.C. § 2253(c)(2).” (ECF No. 16). He has still failed to make such a showing. Because the Court has determined that Mr. Deciantis is not entitled to appeal at all, he is not entitled to appeal IFP, and I recommend his Motions be DENIED. (ECF Nos. 19, 20, 21). Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d

603, 605 (1st Cir. 1980).

/s/ Lincoln D. Almond LINCOLN D. ALMOND United States Magistrate Judge December 1, 2020

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