United States District Court, W.D. Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE
a civil rights action provisionally filed pursuant to 42
U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, Chief United States District Judge, referred this
case to the undersigned for the purpose of making a Report
before the Court is Plaintiff's Motion to Appeal in
forma pauperis. (ECF No. 38).
case was stayed and administratively terminated on May 3,
2019, due to Plaintiff's incarceration within the Texas
Department of Criminal Justice (“TDCJ”). (ECF No.
30). This matter is to remain stayed until such time as
Plaintiff is released from custody or transferred to a
correctional facility in the State of Arkansas.
filed an Objection to this Order on May 16, 2019. (ECF No.
31). He then filed a Motion for Relief from the Order (ECF
No. 32) and a Motion to Join Defendants (ECF No. 33) on May
17, 2019. The Court entered an Order denying these Motions on
August 6, 2019. (ECF No. 34). In the Order, the Court noted
that the Order staying the case was not a final Order or
Judgment but was instead a stay that could be removed when
Plaintiff was either released from TDCJ custody or
transferred to a correctional facility in the State of
Arkansas. The Court further noted that Plaintiff had not
provided persuasive reasons to lift the stay. (Id.).
Plaintiff's Motion to Join Defendants (ECF No. 33) was
denied without prejudice to Plaintiff renewing it, if desired
and appropriate, when this matter is reopened.
filed his Notice of Appeal regarding the stay on August 22,
2019, and his Motion for Leave to Appeal in forma
pauperis on September 10, 2019. (ECF No. 35, 38).
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).
jurisdiction of an appellate court such as the Eighth Circuit
is, “with few exceptions ... limited to ‘final
decisions' of the district court.” Tenkku v.
Normandy Bank, 218 F.3d 926, 927 (8th Cir. 2000);
see also 28 U.S.C.A. § 1291. “[A]
decision is not final, ordinarily, unless it ends the
litigation on the merits and leaves nothing for the
[district] court to do but execute the judgment.”
Cunningham v. Hamilton County, 527 U.S. 198, 204,
(1999). “The only time that an order granting a stay
will be considered a final order is if [the stay] is
tantamount to a dismissal and [the stay] effectively ends the
litigation.” Kreditverein der Bank Austria
Creditanstalt fur Niederosterreich und Bergenland v.
Nejezchleba, 477 F.3d 942, 946 (8th Cir. 2007)
(alterations in original) (citation omitted).
Plaintiff is attempting to appeal an Order staying his case
until he is either released from TDCJ custody or transferred
to a correctional facility in the State of Arkansas. As this
is not an immediately appealable final order, Plaintiff's
appeal is not taken in good faith. I ...