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Thornsberry v. Green

United States District Court, W.D. Arkansas, Fayetteville Division

January 10, 2017

CHRISTOPHER THORNSBERRY PLAINTIFF
v.
JUDGE ROBIN GREEN; PROSECUTING ATTORNEY CARRIE DOBBS; STATE OF ARKANSAS; and, UNITED STATES OF AMERICA DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed by the Plaintiff, Christopher Thornsberry, pursuant to 42 U.S.C. § 1983. Plaintiffs proceed pro se. The case is before me by referral for a determination of whether in forma pauperis status should be granted on appeal. For the reasons stated below, it is my recommendation that the Motion for Leave to Appeal in forma pauperis (Doc. 12) be denied.

         I. Background

         Plaintiff filed his complaint on October 11, 2016. (Doc. 1) The complaint alleges that Thornsberry has been incarcerated in the Benton County Detention Center (“BCDC”) since October 31, 2016[1], on pending criminal charges[2]. He contends that he is being held on excessive bail in violation of the Eighth Amendment. (Doc. 1, p. 4) He claims that Judge Robin Green has denied his numerous requests for a bond reduction. He asserts that he comes from a poverty background and cannot make the excessive bond Judge Green has imposed. (Doc. 1, pp. 4-5) He further claims that Prosecuting Attorney Carrie Dobbs has continuously objected to any bond reduction, and therefore she takes part in the violation of his Eighth Amendment rights. (Doc. 1, pp. 5-6)

         Thornsberry asserts that both Judge Green and Prosecuting Attorney Dobbs claim to represent the State of Arkansas in connection with his pending criminal case; and, on that basis, he alleges that the State of Arkansas should be held liable for any violation of his Eighth Amendment rights. (Doc. 1, p. 6) He also claims the United States of America has failed to protect his constitutional rights. (Doc. 1, p. 7)

         On December 15, 2016, the Court entered an Opinion and Order dismissing Plaintiffs' case with prejudice at the initial screening stage, pursuant to 28 U.S.C. § 1915(e)(2)(B), because Thornsberry's claims are frivolous and/or fail to state claims upon which relief may be granted. (Doc. 8) A Judgment of dismissal with prejudice was filed on the same date (Doc. 9), and the Judgment specifically instructed the Clerk to put a 28 U.S.C. § 1915(g) strike flag on the case.

         Thornsberry filed a Notice of Appeal (Doc. 10) on December 22, 2016, and his Motion for Leave to Appeal in forma pauperis (Doc. 12) was filed on January 6, 2017. The motion was referred to the undersigned on January 6, 2017.

         II. Discussion

         28 U.S.C. § 1915 governs applications for leave to appeal in forma pauperis. 28 U.S.C. § 1915(a)(1) provides:

“. . . any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefore, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.”

28 U.S.C. § 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.” “Good faith, ” within the meaning of the statute, must be judged by an objective and not subjective standard, and a litigant's good faith is demonstrated when he seeks appellate review of any issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962).

         To proceed in forma pauperis is a privilege and not a right. Green v. Wyrick, 428 F.Supp. 728, 731 (W.D. Mo. 1976). “A plaintiff, even though of small means, could reasonably be asked to some small degree to ‘put his money where his mouth is, ' it being all too easy to file suits . . . if it costs nothing whatever to do so.” Id. at 731-32.

         The decision of whether to grant or deny in forma pauperis status under § 1915 “is within the sound discretion of the trial court.” Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000) (internal citation omitted).

         28 U.S.C. §§ 1915(e)(2)(B)(i-iii) provide that on review, the court “shall dismiss the case at any time if the court determines that . . . the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief from a defendant who is immune from such relief.” For the reasons set forth in the Court's Opinion and Order entered on December 15, 2016 (Doc. 8), Plaintiffs' claims were found to be frivolous and they failed to state claims upon which relief may be granted. Specifically, the Court found ...


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