DeSantis v. United Technologies Corp.

• Decision Date: 21 May 1998
• Docket Number: No. 96-338-CIV-ORL-19C.,96-338-CIV-ORL-19C.
• Citation: 15 F.Supp.2d 1285
• Parties: Lawrence V. DeSANTIS, Plaintiff, v. UNITED TECHNOLOGIES CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Florida

15 F.Supp.2d 1285

Lawrence V. DeSANTIS, Plaintiff, v. UNITED TECHNOLOGIES CORPORATION, Defendant.

No. 96-338-CIV-ORL-19C.

United States District Court, M.D. Florida, Orlando Division.

May 21, 1998.

Thomas M. Farrell, IV, Sims, DiLorenzo & Lopez, P.A., Jacksonville, FL, for Plaintiff.

Lawrence V. DeSantis, Merritt Island, FL, pro se.

Patricia E. Lowry, Mark B. Roberts, David L. Ferguson, Steel, Hector & Davis, West Palm Beach, FL, for Defendant.

ORDER

FAWSETT, District Judge.

This case was considered by the Court on the Report and Recommendation of the United States Magistrate Judge (Doc. No. 105, filed April 28, 1998). No objection to said Report and Recommendation was filed. Upon consideration, it is

ORDERED that the Report and Recommendation (Doc. No. 105) is ADOPTED and AFFIRMED. Plaintiff's Motion to Proceed on Appeal In Forma Pauperis (Doc. No. 102, filed March 11, 1998) is hereby DENIED. Plaintiff DeSantis' appeal is not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24. Plaintiff's Application to Proceed In Forma Pauperis (Doc. No. 100, filed January 26, 1998) is DENIED as moot.

REPORT AND RECOMMENDATION

GLAZEBROOK, United States Magistrate Judge.

Following a two day jury trial, the Clerk entered a judgment on October 8, 1997 against plaintiff Lawrence DeSantis and in favor of defendant United Technologies, dismissing the action on the merits and awarding defendant its costs. Docket No. 91. During the underlying proceedings, Thomas M. Farrell, IV ("Farrell") represented DeSantis. On November 7, 1997, DeSantis filed both his notice of appeal and first application to proceed in forma pauperis. Docket Nos. 93 and 94. On November 26, 1997, the Court denied as incomplete DeSantis's first motion to proceed in forma pauperis with leave to refile a completed application. See Docket No. 96. On January 5, 1998, Farrell moved to withdraw as DeSantis' counsel of record. Docket No. 98. On January 26, 1998, DeSantis filed his second motion to proceed in forma pauperis. Docket No. 100.

On February 23, 1998, the Court deferred ruling on DeSantis's second motion to proceed in forma pauperis pending DeSantis' filing of an affidavit that complies with 28 U.S.C. § 1915 and Fed.R.App.P. 24. The Court ordered DeSantis, with the aid and assistance of attorney Farrell, to file an affidavit setting forth DeSantis's belief that he is entitled to redress, and a statement of the issues which DeSantis intends to present on appeal. See Docket No. 101. On March 11, 1998, DeSantis complied with the Court's order by filing a third motion to proceed in forma pauperis [Docket No. 102] and supporting affidavit [Docket No. 103]. On March 19, 1998, the Court held a hearing on DeSantis's motions to proceed in forma pauperis, and granted Farrell's motion to withdraw as counsel of record [Docket No. 98].

DeSantis claims that the jury's verdict — that his claim of sleep apnea did not constitute a "disability" as defined in the Americans with Disabilities Act [ADA or "the Act"] — was in error and the result of "confusion, lack of understanding of the jury instructions submitted in the case, or mistake of law or fact." Docket No. 102. DeSantis claims error based on the jury's reliance on confusing or otherwise objectionable jury instructions [Docket No. 85] and special verdict forms [Docket No. 90]. See Docket No. 102. DeSantis also claims that the following is appropriate for review: "whether reversible error was committed by entry of the October 8, 1997 judgment at the conclusion of the trial finding that the Plaintiff did not suffer from a "disability" as defined in the [ADA] where substantial evidence was submitted that Plaintiff did suffer from a disability within the meaning of the [ADA]." See Docket No. 102. DeSantis cites record evidence in support of his claim of disability under the ADA. See Docket No. 102.

I. The Law

Section 1915, 28 U.S.C., and Fed.R.App.P. 24 govern the determination of applications to proceed in forma pauperis. See Brown v. Pena, 441 F.Supp. 1382, 1384 (S.D.Fla.1977), aff'd, 589 F.2d 1113 (5th Cir.1979).¹ Section 1915(a) provides, in relevant part:

(1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.

* * * * * *

(3) An 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) (1996) (emphasis supplied). Congress also mandates that the Court shall dismiss a case at any time that it determines that the action or appeal taken in forma pauperis is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i). Section 1915(e), 18 U.S.C., provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —

(A) the allegation of poverty is untrue; or

(B) the action or appeal —

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2) (1996) (formerly § 1915(d)).

Rule 24(a) of the Rules of Appellate Procedure provides:

Leave to Proceed on Appeal in Forma Pauperis From District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing, in the detail prescribed by Form 4 of the Appendix of Forms, the party's inability to pay fees and costs or to give security therefor, the party's belief that that party is entitled to redress, and a statement of the issues which that party intends to present on appeal. If the motion is granted, the party may proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial.

Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certification or finding.

If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit filed in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the district court, and by a copy of the statement of reasons given by the district court for its action.

Fed.R.App.P. 24(a) (bold emphasis supplied).

An appeal may not be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915; see Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). "Good faith" within the meaning of § 1915 must be judged by an objective, not a subjective, standard. See Coppedge, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; see also United States v. Wilson, 707 F.Supp. 1582, 1583 (M.D.Ga.1989), aff'd., 896 F.2d 558 (11th Cir. 1990).

The Petitioner demonstrates good faith when he seeks appellate review of any issue that is not frivolous. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); see also Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957)(absent some evident improper motive, the applicant establishes good faith by presenting any issue that is not plainly frivolous); Hayes v. United States, 258 F.2d 400 (5th Cir.1958); Meadows v. Trotter, 855 F.Supp. 217, 219 (W.D.Tenn.1994); U.S. v. Durham, 130 F.Supp. 445 (D.C.D.C.1955) ("good faith" means the existence of a substantial question or one which has merit and is not frivolous); Sejeck v. Singer Mfg. Co., 113 F.Supp. 281 (D.C.N.J.1953) ("in good faith" means that points on which appeal is taken are reasonably arguable); U.S. v. Gicinto, 114 F.Supp. 929 (W.D.Mo.1953) (the application should be denied if the trial court is of opinion that the appeal is frivolous, and without merit, and a futile proceeding).

The good-faith test under § 1915 must not be converted into a requirement of a preliminary showing of any particular degree of merit, and the district court must grant leave to appeal in forma pauperis unless issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958); see also United States v. Scharf, 354 F.Supp. 450, 453 (E.D.Pa.1973), aff'd, 480 F.2d 919 (3d Cir.1973) (the Court must liberally construe § 1915,...