Holmes v. United States of America

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION - CINCINNATI ROSALIND HOLMES, : Case No. 1:20-cv-825 Plaintiff, Judge Matthew W. McFarland VS. GEORGIA PACIFIC,

Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION (Docs. 88)

This action is before the Court upon the Report and Recommendation (the “Report”) (Doc. 88) of United States Magistrate Judge Karen L. Litkovitz, to whom this case is referred pursuant to 28 U.S.C. § 636(b). In the Report, Magistrate Judge Litkovitz recommended that the Court certify that Plaintiff's in forma pauperis appeal would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3) and deny Plaintiff's Motion for Leave to Proceed In Forma Pauperis on Appeal (Doc. 87). Plaintiff filed an Objection to the Report (Doc. 91). Thus, this matter is ripe for the Court’s review. As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the Court has made a de novo review of the record in this case. Upon said review, the Court finds that Plaintiff's Objection is not well-taken and are accordingly OVERRULED. Thus, the Court ADOPTS Magistrate Judge Litkovitz’s Report and Recommendation (Doc. 88) in its entirety and ORDERS the following:

(1) The Court CERTIFIES that Plaintiff's in forma pauperis appeal would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3); and (2) The Court DENIES Plaintiff's Motion for Leave to Proceed In Forma Pauperis on Appeal (Doc. 87). Additionally, the Court ADVISES Plaintiff that, pursuant to Fed. R. App. P. 24(a)(4), Plaintiff may file, within thirty (30) days after service of this Order, a motion with the Sixth Circuit Court of Appeals for leave to proceed as a pauper on appeal. Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Service, 105 F.3d 274 (6th Cir. 1997). Plaintiff’s motion must include a copy of the affidavit filed in this Court and this Court's statement of the reasons for denying pauper status on appeal. Id.; see Fed. R. App. P. 24(a)(5). Lastly, the Court ADVISES Plaintiff that, if she does not file a motion within thirty (30) days of receiving notice of the District Court’s decision as required by Fed. R. App. P. 24(a)(5), or fails to pay the required filing fee of $505.00 within this same time period, the appeal will be dismissed for want of prosecution. Callihan, 178 F.3d at 804. Once dismissed for want of prosecution, the appeal will not be reinstated, even if the filing fee or motion for pauper status is subsequently tendered, unless Plaintiff can demonstrate that she did not receive notice of this Court’s decision within the time period prescribed for by Fed. R. App. P. 24(a)(5). Id.

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IT IS SO ORDERED.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHJO aK any □□□ By: MATTHEW W. McFARLAND UNITED STATES DISTRICT JUDGE