The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
LEVERT BROWN :
:
v. : C.A. No. 19-00155-WES
:
HENRY KINCH, et. al. :
REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge
Pending before the Court is Levert Brown’s Motion for Permission to Appeal In Forma
Pauperis (“IFP”). (ECF No. 9). The Inmate Account Statement submitted with his Application
indicates that he had a balance of $541.91 in his Trust account, $473.25 of which was encumbered, as
of December 16, 2019. (ECF No. 9-2 at pp. 1-2).
Federal Rule of Appellate Procedure 24 sets forth the steps a litigant must take to obtain
approval to appeal IFP. Fed. R. App. P. 24(a) requires a litigant seeking IFP status on appeal to provide
the District Court with an affidavit that (1) demonstrates the party’s inability to pay in the detail
prescribed by Form 4 of the Appendix of Forms; (2) claims an entitlement to redress; and (3) states the
issues that the party intends to present on appeal.
Plaintiff has demonstrated his inability to pay and has filed a “Notice of Appeal” which satisfies
the second and third requirements of Fed. R. App. P. 24(a). Nevertheless, I recommend that his
Motion to Appeal IFP be DENIED because his appeal is without merit. Plaintiff=s right to appeal IFP
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, C.A. No.
04-380T, 2007 WL 2067661 at *1 (D.R.I. July 13, 2007) (internal citations omitted).
In the present case, Plaintiff’s proposed appeal to the First Circuit Court of Appeals presents
no cognizable legal theories or meritorious factual allegations. As set forth in the Court’s Order, the
Plaintiff was granted leave to file an Amended Complaint, and Judge Smith noted that it “is almost
identical to the Plaintiff’s original Complaint…” that this Court recommended be dismissed for failure
to state a cognizable claim. (ECF No. 6 at p. 2). Judge Smith dismissed the Amended Complaint
because the Amended Complaint “does not allege any additional facts regarding intentional actions
taken by the [Defendant] or other state actors.” Id. Because there is absolutely no merit to Plaintiff’s
claims, his appeal is likewise frivolous. Accordingly, I recommend that the District Court find that
the Appeal is not taken in good faith and DENY Plaintiff’s Motion to Appeal IFP.
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
February 11, 2020
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