United States District Court, W.D. Texas, San Antonio Division
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
the Court in the above-styled cause of action is Defendant
Scott Ash James Zirus's Application to Proceed In Forma
Pauperis on Appeal [#47]. By his motion, Zirus asks the Court
to waive all costs associated with his appeal of the District
Court's Order denying his Motion to Dismiss [#42]. The
undersigned has authority to enter this recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons
set forth below, it is recommended that Defendant's
motion [#47] be DENIED.
process of seeking leave to proceed IFP on appeal is governed
by Rule 24 of the Federal Rules of Appellate Procedure and 28
U.S.C. § 1915(a)(3). According to Rule 24, a party to a
district court action who desires to proceed IFP on appeal
must file a motion in the district court. Fed. R. App. P.
24(a). The movant is required to attach an affidavit to the
motion that shows in detail the movant's inability to pay
the appeal costs and fees; claims an entitlement to redress;
and states the issues the movant intends to present on
appeal. Id. at 24(a)(1).
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.” 28 U.S.C. §
1915(a)(3). An appeal is taken in good faith under Section
1915(a)(3) if a litigant seeks appellate review of any issue
that is not frivolous. Howard v. King, 107 F.2d 215,
220 (5th Cir. 1983). Accordingly, in addition to
demonstrating that his financial condition qualifies him to
proceed under the IFP statue, a movant must also demonstrate
that his appeal involves nonfrivolous issues. Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982).
affidavit Zirus filed with the Court confirms his inability
to pay the costs associated with this appeal due to his
current incarceration. However, the Court should still deny
his motion because he is attempting to appeal a
non-appealable interlocutory order over which there is no
appellate jurisdiction. The courts of appeals only have
jurisdiction over final decisions, judgments, orders, and
decrees. 28 U.S.C. § 158(d). An order denying a motion
to dismiss is not appealable because it is not a final order
within the meaning of 28 U.S.C. § 158(d). Chrissy F.
by Medley v. Miss. Dep't of Pub. Welfare, 925 F.2d
844, 848 (5th Cir. 1991). The Fifth Circuit therefore lacks
jurisdiction over Zirus's appeal of the denial of his
motion to dismiss. Therefore, Zirus's appeal is not taken
in good faith.
Conclusion and Recommendation
reasons discussed above, the undersigned recommends that the
District Court certify that Plaintiff's appeal is not
taken in good faith and DENY Defendant Scott
Ash James Zirus's Application to Proceed In Forma
Pauperis on Appeal [#47].
Instructions for Service and Notice of Right to
United States District Clerk shall serve a copy of this
report and recommendation on all parties by either (1)
electronic transmittal to all parties represented by
attorneys registered as a “filing user” with the
clerk of court, or (2) by mailing a copy to those not
registered by certified mail, return receipt requested.
Written objections to this report and recommendation must be
filed within fourteen (14) days after being
served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). The party shall file the objections with
the clerk of the court, and serve the objections on all other
parties. A party filing objections must specifically identify
those findings, conclusions or recommendations to which
objections are being made and the basis for such objections;
the district court need not consider frivolous, conclusive or
general objections. A party's failure to file written
objections to the proposed findings, conclusions and
recommendations contained in this report shall bar the party
from a de novo determination by the district court.
Thomas v. Arn,474 U.S. 140, 149-52 (1985);
Acuña v. Brown & Root, Inc., 200 F.3d
335, 340 (5th Cir. 2000). Additionally, failure to file
timely written objections to the proposed findings,