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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARCEL MALACHOWSKI, §

#15287-052, §

Petitioner, §

§

v. § No. 3:22-cv-01156-C-BT 

§

NFN RIVERS, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is a motion by Marcel Malachowski to proceed in 

forma pauperis on appeal (ECF No. 21). For the following reasons, the Court 

should deny Malachowski’s motion. 

I.

To proceed in forma pauperis on appeal, an appellant must show 

financial eligibility and a nonfrivolous issue for appeal. Carson v. Polley, 689 

F.2d 562, 586 (5th Cir. 1982). Under Federal Rule of Appellate Procedure 

24(a)(3)(A), an appellant is ineligible for in forma pauperis status if the 

court certifies that the appeal is not taken in good faith. “Good faith” means 

that the issues on appeal are not frivolous. Coppedge v. United States, 369 

U.S. 438, 445 (1962). When the underlying claims are “entirely frivolous and 

had no possibility of success,” the appeal is not taken in good faith. Baugh 

v. Taylor, 117 F.3d 197, 201-02 (5th Cir. 1997). The determination of whether 

good faith exists “is limited to whether the appeal involves legal points 

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arguable on the merits (and therefore not frivolous).” United States v. 

Moore, 858 F. App’x 172, 172 (5th Cir. 2021) (per curiam) (quoting Howard 

v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and 

citation omitted)). A district court has discretion in deciding whether to 

grant or deny a request to proceed in forma pauperis. Williams v. Estelle, 

681 F.2d 946, 947 (5th Cir. 1982) (per curiam) (citing Green v. Estelle, 649 

F.2d 298, 302 (5th Cir. 1981)). 

II.

Malachowski, an inmate in the Bureau of Prisons (BOP), initiated this 

pro se lawsuit by filing a petition for writ of habeas corpus under 28 U.S.C. 

§ 2241 (ECF No. 3) and a memorandum in support (ECF No. 4). The 

magistrate judge issued findings and conclusions, recommending that the 

Court dismiss Malachowski’s petition with prejudice. FCR (ECF No. 14). 

Malachowski filed objections. (ECF No. 16.) 

On May 23, 2023, the District Court overruled Malachowski’s 

objections, accepted the recommendation, denied a certificate of 

appealability (COA), and entered judgment. Ord. (ECF No. 17); J. (ECF No. 

18). At that time, the Court found that Malachowski “failed to show that a 

reasonable jurist would find: (1) this Court’s ‘assessment of the 

constitutional claims debatable or wrong,’ or (2) ‘it debatable whether the 

petition states a valid claim of the denial of a constitutional right’ and 

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“debatable whether [this Court] was correct in its procedural ruling.” Ord. 2 

(ECF No. 17) (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)). 

The Court previously concluded that Malachowski’s claims lacked 

merit and denied a COA. Incorporating the magistrate judge’s Findings, 

Conclusions, and Recommendation and the Court’s adoption order, which 

denied a COA, the Court should certify that the appeal is not taken in good 

faith. Specifically, the appeal presents no legal point of arguable merit, and 

it would be frivolous. See Howard, 707 F.2d at 220. 

III. 

The Court should find Malachowski’s appeal is not taken in good faith 

and DENY his motion for leave to proceed in forma pauperis on appeal. 

If the Court denies Malachowski’s request to proceed in forma 

pauperis on appeal, he may challenge that finding by filing a separate 

motion to proceed in forma pauperis on appeal with the Clerk of Court for 

the United States Court of Appeals for the Fifth Circuit within 30 days from 

the date of this order. See Baugh, 117 F.3d at 202; see also Fed. R. App. P. 

24(a)(5).

Signed July 6, 2023. 

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). To be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by 

statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections to 14 days).

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