1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL GRIMMETT,

Plaintiff, Civil Action No. 2:08-CV-14678

v. HONORABLE VICTORIA A. ROBERTS

UNITED STATES DISTRICT COURT

MIGUEL BERRIOS,

Defendant,

_____________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY 

THAT AN APPEAL WOULD BE UNDERTAKEN IN GOOD FAITH

Michael Grimmett (“Plaintifff”) is a state prisoner currently confined at the

Hiawatha Correctional Facility in Kincheloe, Michigan. Plaintiff filed a pro se civil

rights complaint pursuant to 42 U.S.C. § 1983. On December 1, 2008, this Court issued

an Opinion and Order of Summary Dismissal, finding that Plaintiff had failed to state a

claim upon which relief could be granted. See Grimmett v. Berrios, No. 2008 WL

5102262 (E.D. Mich. December 1, 2008). On January 5, 2009, Plaintiff filed a Notice of

Appeal. Plaintiff has also filed an Application to Proceed Without Prepayment of Fees

and Affidavit, to which he has attached a Motion to Proceed In Forma Pauperis. For the

reasons stated below, this Court certifies that any appeal from this Court’s opinion and

order of summary dismissal would be frivolous and not undertaken in good faith so as to

allow Plaintiff leave to appeal in forma pauperis.

This Court declines to certify that any appeal of the Court’s opinion and order

would be undertaken in good faith. 28 U.S.C. § 1915(a)(3) indicates that an appeal may

2:08-cv-14678-VAR-DAS Doc # 12 Filed 01/26/09 Pg 1 of 3 Pg ID 38
2

not be taken in forma pauperis if the trial court certifies in writing that is not taken in

good faith. A federal court may refuse to certify an appeal for in forma pauperis status if

it is not taken in good faith. Harkins v. Roberts, 935 F. Supp. 871, 873 (S.D. Miss. 1996). 

In determining whether an appeal under the in forma pauperis statute is taken in

good faith, the good faith standard is an objective one. Nabkey v. Gibson, 923 F. Supp.

117, 122 (W.D. Mich. 1990)(quoting Coppedge v. United States, 369 U.S. 438, 445

(1962)). The U.S. Supreme Court has interpreted good faith as stated in 28 U.S.C. § 1915

as simply meaning that the issue being appealed is not frivolous. Davis v. Michigan

Department of Corrections, 746 F. Supp. 662, 667 (E.D. Mich. 1990); Coppedge v.

United States, 369 U.S. at 445. Where a plaintiff’s complaint fails to even remotely

approach an actionable claim under § 1983, an appeal from the decision may not be taken

in forma pauperis because it would be frivolous and would not be undertaken in good

faith. Davis v. Michigan Department of Corrections, 746 F. Supp. at 667. 

In this case, for reasons stated in greater detail in the Opinion and Order of

Summary Dismissal, this Court dismissed Plaintiff’s complaint pursuant to 28 U.S.C. §

1915(e)(2) and 28 U.S.C. § 1915(A). Because Plaintiff’s complaint lacked any arguable

basis in the law, this Court certifies that any appeal by the Plaintiff of the claims raised in

his complaint would be frivolous and not undertaken in good faith. See Goodell v.

Anthony, 157 F. Supp. 2d 796, 802 (E.D. Mich. 2001); See also Artis v. City of Jackson,

2001 WL 277050, * 2 (E.D. Mich. March 6, 2001)(same). Stated differently, it would be

inconsistent for this Court to determine that Plaintiff’s complaint was too frivolous or

2:08-cv-14678-VAR-DAS Doc # 12 Filed 01/26/09 Pg 2 of 3 Pg ID 39
3

meritless to be served upon the defendant, yet has sufficient merit to support a

determination that any appeal from the Court’s order of dismissal would be undertaken in

good faith so as to permit such an appeal. See Anderson v. Sundquist, 1 F. Supp. 2d 828,

835 (W.D. Tenn. 1998)(citations omitted).

ORDER

IT IS HEREBY ORDERED that the Motion to Proceed In Forma Pauperis [Dkt.

# 10] is DENIED.

IT IS FURTHER ORDERED AND CERTIFIED by the Court that any appeal

taken by Plaintiff would not be done in good faith.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: January 26, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Michael Grimmett by electronic means or

U.S. Mail on January 26, 2009.

s/Carol A. Pinegar 

Deputy Clerk

2:08-cv-14678-VAR-DAS Doc # 12 Filed 01/26/09 Pg 3 of 3 Pg ID 40