178 F.3d 800 (6th Cir. 1999), 98-6077, Callihan v. Schneider

Docket Nº:98-6077
Citation:178 F.3d 800
Opinion Judge:BOYCE F. MARTIN, JR., Chief Judge.
Party Name:WALTER CALLIHAN, Plaintiff-Appellant, v. STEWART SCHNEIDER, Individually and in his Official Capacity as Commonwealth Attorney; KEITH MOORE, Individually and in his Official Capacity as Kentucky State Police Detective, Defendants-Appellees
Attorney:WALTER CALLIHAN, Plaintiff - Appellant, Pro se, Argillite, KY.
Judge Panel:Before: MARTIN, Chief Judge; DAUGHTREY and GILMAN, Circuit Judges.
Case Date:May 28, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 800

178 F.3d 800 (6th Cir. 1999)

WALTER CALLIHAN, Plaintiff-Appellant,

v.

STEWART SCHNEIDER, Individually and in his Official Capacity as Commonwealth Attorney; KEITH MOORE, Individually and in his Official Capacity as Kentucky State Police Detective, Defendants-Appellees

No. 98-6077

United States Court of Appeals, Sixth Circuit

May 28, 1999

Appeal from the United States District Court for the Eastern District of Kentucky at Ashland. No. 98-00040. Joseph M. Hood, District Judge.

Callihan's request for pauper status on appeal denied and case dismissed.

WALTER CALLIHAN, Plaintiff - Appellant, Pro se, Argillite, KY.

Before: MARTIN, Chief Judge; DAUGHTREY and GILMAN, Circuit Judges.

Page 801

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

Walter Callihan, a pro se Kentucky resident, appeals a district court order denying his motion to appeal in forma pauperis. We address Callihan's appeal because recent amendments to Fed. R. App. P. 24 require us to modify our decision in Floyd v. United States Postal Serv., 105 F.3d 274 (6th Cir. 1997).

Seeking monetary relief, Callihan sued a county prosecutor and a state police detective alleging that they engaged in a conspiracy to entrap Callihan and charge him with attempting to bribe a public official. The district court subsequently dismissed the complaint without prejudice pursuant to Heck v. Humphrey, 512 U.S. 477, 129 L.Ed.2d 383, 114 S.Ct. 2364 (1994), concluding that the request for damages under 42 U.S.C. § 1983 was premature as any ruling on the complaint could affect Callihan's pending state criminal charges. The district court also concluded that Callihan had made insufficient allegations to establish a conspiracy claim. Finally, the court declined to exercise supplemental jurisdiction over a state law claim.

Callihan then moved for leave to proceed in forma pauperis on appeal. The district court certified that Callihan's appeal would not be taken in good faith and

Page 802

pursuant to Floyd, ordered that Callihan was to pay the required filing fee of $ 105 or the clerk of this court would dismiss his appeal. It is this order that is the subject of this appeal.

In Floyd, we discussed the problem of how the plain language of the then recently amended 28 U.S.C. § 1915(a)(3) conflicted with the prior version of Rule 24(a). Specifically, we stated that:

Congress has the authority to regulate matters of practice and procedure in the federal courts. Sibbach v. Wilson & Co., 312 U.S. 1, 9-10, 61 S.Ct. 422, 423-25, 85 L.Ed. 479 (1941). Congress delegated some of this power in 1934 by passing the Rules Enabling Act, which gave the Supreme Court the power to promulgate rules of practice and procedure for United States courts. 28 U.S.C. § § 2071-72. Despite this delegation, Congress maintains a passive, but integral role in implementing any rules drafted by the Supreme Court. All rules are subject to congressional review and become effective only after Congress has had seven months...

To continue reading

FREE SIGN UP