IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Tonya Claborn, :

Plaintiff, :

v. : Case No. 2:11-cv-679

 JUDGE GEORGE C. SMITH

The State of Ohio, et al., : Magistrate Judge Kemp

Defendants. :

OPINION AND ORDER

Final judgment was entered in this case on September 14,

2012. Plaintiff, who paid the filing fee when the case was

originally filed, has filed a notice of appeal and a motion for

leave to appeal in forma pauperis. For the following reasons,

the Court will deny the motion.

Fed.R.App.P. 4(a)(1)(A) states that “[i]n a civil case,

except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the

notice of appeal required by Rule 3 must be filed with the

district clerk within 30 days after entry of the judgment or

order appealed from.” Plaintiff filed her notice of appeal on

October 22, 2012, which is more than thirty days after judgment

was entered. Her appeal is therefore untimely.

There is case law to support the proposition that if a

notice of appeal is not filed timely, the district court lacks

jurisdiction to issue an order granting a motion for leave to

proceed in forma pauperis because the Court of Appeals would lack

jurisdiction to hear the appeal. See, e.g., Goolsby v. Astrue,

2010 WL 339786 (M.D. Ga. Jan. 21, 2010); Mattoon v. Davis, 2009

WL 367687 (E.D. Mich. Feb. 11, 2009). Other courts appear to

take the position that if the appeal has not been taken in a

timely fashion, any motion for leave to proceed on appeal in

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forma pauperis is moot. See Woodmore v. Farmington Hills Police

Dept., 2011 WL 5105793 (E.D. Mich. Oct. 27, 2011). Still other

decisions appear to deny motions for leave to proceed in forma

pauperis which accompany untimely notices of appeal either

without much discussion, see, e.g., In re Siemon, 421 F.3d 167

(2d Cir. 2005), or because any appeal initiated by an untimely

notice of appeal would be frivolous or “not taken in good faith,”

which is a basis for denying such a motion under 28 U.S.C.

§1915(a)(3). See Darden v. Missouri Dept. of Corrections, 2009 WL

1867688, *1 (E.D. Mo. June 26, 2009)(when notice of appeal was

filed too late, “[p]laintiff's motion to proceed in forma

pauperis on appeal will be denied as having not been taken in

good faith”); cf. DeSantis v. United Technologies Corp., 15

F.Supp. 2d 1285, 1289 (M.D. Fla. 1998)(an application for leave

to proceed on appeal in forma pauperis “may be denied if it

appears — objectively — that the appeal cannot succeed as a

matter of law”), aff’d --- Fed. Appx. ----, 193 F.3d 522 (11th

Cir. Aug. 20, 1999). Obviously, an appeal which is untimely and

over which the Court of Appeals has no jurisdiction cannot

succeed as a matter of law.

In her notice of appeal, plaintiff sets forth lengthy and

detailed arguments concerning the issues she intends to raise on

appeal. In light of the untimely filing of her notice of appeal

and the case authority cited above, the Court does not reach the

question of whether she has presented colorable arguments in

favor of reversal on these issues. Its decision to deny her

motion is based, rather, on the fact that she cannot succeed on

appeal because the Court of Appeals lacks jurisdiction to decide

the appeal on its merits.

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For these reasons, plaintiff’s motion for leave to proceed

on appeal in forma pauperis (Doc. 32) is DENIED.

IT IS SO ORDERED. 

 /s/ George C. Smith 

George C. Smith

 United States District Judge

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