United States District Court, D. Rhode Island
VICTOR A. TAVARES, Plaintiff,
DIRECTOR COYNE-FAGUE; DEPUTY DIRECTOR KETTLE; GRIEVANCE COORDINATOR GALLIGHER; WARDEN ACETO; CAPTAIN HAIBON, Defendants.
REPORT AND RECOMMENDATION
Patricia A. Sullivan, United States Magistrate Judge.
August 5, 2019, Plaintiff Victor A. Tavares, a prisoner at
the Adult Correctional Institutions (“ACI”),
filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 complaining about the length of his state-imposed
sentence. He included a motion for leave to proceed in
forma pauperis (“IFP”), which was referred
to me for screening. ECF Nos. 1, 2. While I found that his
IFP application satisfied the requirements of 28 U.S.C.
§ 1915(a)(1), I did not grant the IFP motion. Instead,
in a report and recommendation dated August 22, 2019, I
recommended that Plaintiff's complaint be summarily
dismissed for failure to state a claim because “it
failed to state a viable habeas corpus claim due to its
failure to allege exhaustion of applicable state remedies, as
well as because, to the extent that it claims money damages,
it is Heck-barred.” ECF No. 3 at 8. I further
found the complaint to be “patently meritless and
beyond all hope of redemption” because Plaintiff had
“clothed in the trappings of § 1983 a claim for
habeas corpus relief that is not facially plausible, ”
and it was Plaintiff's second time asserting the same
claim. Id. at 7, 9. Plaintiff's objection to the
report and recommendation (ECF No. 4) was rejected by the
District Court, which adopted it by text order on October 22,
2019. The complaint was dismissed without leave to amend.
See Text Order of Oct. 22, 2019.
November 18, 2019, Plaintiff filed a two-sentence,
handwritten motion for leave to appeal IFP. ECF No. 6. The
entirety of the grounds for the IFP motion is as follows:
“Plaintiff moves for leave to proceed in forma pauperis
due to the fact that the order entered has no memorandum and
order signed by the Justice nor is there an entry of a final,
valid judgment.” Id. This appellate IFP motion
has been referred to me for determination. Because I find
that it should be denied, I am addressing it by report and
recommendation. Keselica v. Wall, No. CA 07-224 ML,
2007 WL 2126518, at *1 (D.R.I. July 23, 2007) (denial of IFP
motion is equivalent of dismissal).
his prior IFP motion was not granted, Fed. R. App. P.
24(a)(3), procedurally, Plaintiff's IFP motion is
controlled by Fed. R. App. P. 24(a), which requires that he
must provide the Court with an affidavit that (i)
demonstrates the party's inability to pay in the detail
prescribed by Form 4 of the Appendix of Forms; (ii) claims an
entitlement to redress; and (iii) states the issues that the
party intends to present on appeal. Plaintiff did not comply
with any these requirements. He did not file a completed
affidavit based on Form 4 and did not include a copy of his
prisoner trust fund account statement; therefore, the Court
cannot ascertain whether he remains financially qualified for
IFP status on appeal. Further, he has stated nothing regarding
his entitlement to redress. And, so far, what Plaintiff has
provided regarding the issues he intends to present on appeal
appears to be inadequate in that he complains only that the
District Court adopted my report and recommendation by text
order instead of by memorandum and order and did not enter a
separate final judgment. However, he presents no legal
principle that would bar the Court from proceeding by text
order, which is a common practice. E.g., Brown
v. Ricci, Civil Action No. 11-11154-RGS, 2012 WL 88068,
at *1 (D. Mass. Jan. 10, 2012). Further, he articulates no
reason why a separate judgment needed to enter given that
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6) amounts to a “judgment on the merits.”
Federated Dep't. Stores, Inc. v. Moitie, 452
U.S. 394, 399 (1981); Airframe Sys., Inc. v. Raytheon
Co., 601 F.3d 9, 14 (1st Cir. 2010) (“dismissal of
. . . suit for failure to state a claim was plainly a final
judgment on the merits”). Therefore, these do not
appear to amount to “issues that the party intends to
present on appeal.”
on the foregoing, I find that Plaintiff's appellate IFP
motion is procedurally insufficient. In reliance on these
deficiencies, I recommend that the IFP motion be denied
subject to refiling it with appropriate documentation. Such
documentation would have to include a completed Form 4, with
a current copy of the prison trust account, and a statement
of the claimed entitlement to redress, as well as the issues
to be presented on appeal.
IFP motion should also be denied because of the lack of merit
of the underlying claim. Section 1915 mandates 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). For the reasons
set forth in the report and recommendation (ECF No. 3)
adopted on October 22, 2019, I now recommend that the Court
certify that this appeal is not taken in good faith.
Lyons v. Wall, No. CA 04-380-T, 2007 WL 2067661, at
*1 (D.R.I. July 13, 2007); see, e.g., Hale v.
Dearie, 19-CV-1257(AMD)(ST), 2019 WL 1517087, at *3
(E.D.N.Y. Apr. 8, 2019), appeal dismissed, (Aug. 14,
2019) (court certifies that appeal of dismissal of §
1983 action challenging incarceration and seeking damages not
taken in good faith because any attempt to amend such a
complaint would be futile); Jackson v. Tucker, No.
2:18-cv-1736, 2019 WL 2004022, at *1 (S.D. Ohio May 7, 2019)
(court certifies appeal would not be in good faith because
plaintiff seeks invalidation of state-court criminal
proceedings and sentence; complaint dismissed as
Heck-barred); Mariscal v. Skolnik, No.
2:09-CV-02334-KJD, 2012 WL 2522650, at *4 (D. Nev. June 29,
2012) (court certifies that appeal would not be in good faith
after plaintiff was plainly and consistently told that he
must seek post-conviction relief and not file § 1983
action). If this recommendation is adopted, I further
recommend that Plaintiff be denied IFP status based on the
Court's certification, even if he overcomes the
procedural deficits identified above. See Lyons,
2007 WL 2067661, at *1.
conclusion, based on Plaintiff's procedural failure to
comply with the requirements of Fed. R. App. P. 24(a), as
well as (to the extent that the Court adopts my
recommendation and certifies that an appeal would not be
taken in good faith), based on the lack-of-good-faith
certification, I recommend that Plaintiff's motion (ECF
No. 6) to proceed IFP on appeal be denied. Any objection to
this report and recommendation must be specific and must be
served and filed with the Clerk of the Court within fourteen
(14) days of its receipt. See Fed.R.Civ.P. 72(b)(2);
DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by
the district judge and the right to appeal the Court's
decision. See United States v. Lugo Guerrero, 524
F.3d 5, 14 (1st Cir. 2008); Park Motor Mart, Inc. v. Ford
Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
 While the Court could guess based on
his August 5, 2019, IFP submission and his continued
incarceration that Plaintiff very likely remains qualified
for IFP status, he has not complied with the procedures set
forth in Fed. R. App. P. 24(a). ...