LINDER v. DEA ADMINISTRATOR

• Court: District Court, S.D. Indiana
• Decided: January 8, 2021
• Docket: 2:20-cv-00037
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

DAVID W LINDER, ) ) Plaintiff, ) ) v. ) No. 2:20-cv-00037-JPH-MJD ) DEA ADMINISTRATOR, ) ) Defendant. )

ORDER DENYING REQUEST TO PROCEED ON APPEAL IN FORMA PAUPERIS

Plaintiff, David Linder, seeks leave to proceed on appeal without prepaying the appellate fees. Dkt. 25. 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. Linder's request to appeal in forma pauperis is denied. The Court dismissed this case because any challenge to future enforcement of the Controlled Substances Act against Mr. Linder was "'too speculative' to support his claim." Dkt. 15 (quoting United States v. Meza– Rodriguez, 798 F.3d 664, 668 (7th Cir. 2015)).

There is no objectively reasonable argument that Mr. Linder has suffered "an actual or imminent injury." Dkt. 15 at 1 (quoting Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). Mr. Linder seeks "to clear the way" to possess substances that the Controlled Substances Act would otherwise prevent him from possessing. Id. (quoting dkt. 14 at 3). But he remains a prisoner and has not alleged facts showing that federal prosecution for possessing those substances is imminent—or showing anything more than "a merely speculative future" injury. Marshall, 445 F.3d at 969–70; Diaz v. Duckworth, 143 F.3d

345, 347 (7th Cir. 1998) ("Certainty is not required but a remote possibility won't do."). Indeed, the Bureau of Prisons' inmate locator lists Mr. Linder's release date as "LIFE." https://www.bop.gov/inmateloc/index.jsp (David William Linder, Register Number: 25913-048); see United States v. Linder, No. 05-4557, 200 Fed. Appx. 186 (4th Cir. 2006) (affirming Mr. Linder's convictions and sentences, including "a life sentence on the drug conspiracy count"). If that situation changes, this case's dismissal without prejudice, dkt. 16, will not prevent him from trying again.

There is no objectively reasonable argument that Mr. Linder'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. [25], is DENIED. SO ORDERED. Date: 1/8/2021 SJamu Patrick awlove James Patrick Hanlon United States District Judge Southern District of Indiana

Distribution: DAVID W LINDER 25913-048 TERRE HAUTE - FCI TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 33 TERRE HAUTE, IN 47808