Seals et al v. Department of Health and Hospitals Office of Citizens with Developmental Disabilities, No. 2:2015cv06876 - Document 18 (E.D. La. 2016)
Court Description: ORDER & REASONS denying 15 Motion for Leave to Appeal in forma pauperis; denying 16 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 6/15/2016. (mmm)
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Seals et al v. Department of Health and Hospitals Office of Citizens with Developmental Disabilities Doc. 18 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DEROME A. SEALS and J ESSIE WRIGHT CIVIL ACTION VERSUS NO: 15-6876 DEPARTMENT OF HEALTH AND HOSPITALS, OFFICE OF CITIZENS WITH DEVELOPMENTAL DISABILITIES SECTION: R ORD ER AN D REASON S Plaintiffs Derom e Seals and J essie Wright m ove the Court to perm it them to appeal in form a pauperis the Court's order dism issing their com plaint under Federal Rule of Civil Procedure 12(b)(6).1 Plaintiffs have failed to identify the issues they intend to present on appeal, and their legal argum ents lack good faith. Accordingly, the Court denies the m otion. I. BACKGROU N D Plaintiff Wright participates in the "New Opportunities Waiver" (NOW) program and receives services from the Louisiana Departm ent of Health and 1 R. Docs. 15, 16. Dockets.Justia.com Hospital's (DHH) Office for Citizens with Developm ent Disabilities.2 Plaintiff Seals is Wright's father. Plaintiffs allege that an altercation between Wright and a driver for a DHH transportation vendor, Superior Options, caused them to sustain psychological and em otional traum a, loss of appetite, and other injuries. On Decem ber 16, 20 15, plaintiffs sued DHH seeking m onetary dam ages for their injuries under the due process clause of the Fourteenth Am endm ent, the cruel and unusual punishm ent clause of the Eighth Am endm ent, the Protection and Advocacy for Individuals with Mental Illness Act of 1986, Titles II and IV of the Am ericans with Disabilities Act, and the Developm ental Disabilities Assistance and Bill of Rights Act of 20 0 0 . Plaintiffs also asserted claim s under Louisiana tort law, including negligence and intentional infliction of em otional distress. DHH m oved to dism iss plaintiffs' com plaint under Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiffs failed to plead a claim against DHH upon which relief m ay be granted. The Court granted the m otion as to plaintiffs' federal-law claim s and dism issed plaintiffs' state-law claim s for lack of jurisdiction. 2 Unless otherwise noted, the Court draws these facts from its order granting DHH's m otion to dism iss. R. Doc. 12. 2 Plaintiffs now m ove the Court to perm it them to proceed in form a pauperis on appeal.3 Seals indicates that his gross wages are $ 1,189 per m onth, com pared to regular m onthly expenses of $ 1,212.4 Seals also indicates that he has a current checking account balance of $ 50 and other assets valued at $ 550 .5 Wright reports no sources of incom e, a checking account balance of $ 30 , and no other accounts or assets.6 II. LEGAL STAN D ARD A claim ant m ay proceed with an appeal in form a pauperis if he m eets three requirements. First, the claimant must subm it "an affidavit that includes a statem ent . . . that [he] is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The district court m ust determ ine whether the costs of appeal would cause an undue financial hardship. See Prow s v. Kastner, 842 F.2d 138, 140 (5th Cir. 1998 ). Second, the claim ant m ust provide the court with an affidavit that "states the issues that the party intends to present on appeal." Fed. R. App. P. 24(a)(1)(C); accord 28 U.S.C. § 1915(a)(1) ("Such 3 R. Docs. 15, 16. 4 R. Doc. 15. 5 Id. 6 R. Doc. 16. 3 affidavit shall state the nature of the . . . appeal and affiant's belief that the person is entitled to redress."). Third, the claim ant's appeal m ust be "taken in good faith." 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(4)(B). "Good faith is dem onstrated when a party seeks appellate review of any issue not frivolous." How ard v. King, 70 7 F.2d 215, 220 (5th Cir. 1983) (citing Coppedge v. United States, 369 U.S. 438 (1962)). Good faith "does not require that probable success be shown," but rather "is lim ited to whether the appeal involves legal points arguable on their m erits (and therefore not frivolous)." United States v. Arroy o– Jurado, 477 F. App'x 150 , 151 (5th Cir. 20 12). "A com plaint is frivolous if it lacks an arguable basis either in law or in fact." Kingery v. Hale, 73 F. App'x 755, 755 (5th Cir. 20 0 3). III. D ISCU SSION Although plaintiffs sufficiently dem onstrate their inability to pay legal fees related to their appeal, the Court nonetheless concludes that plaintiffs' m otion to proceed in form a pauperis lacks m erit. The Court denies the m otion because plaintiffs fail to indicate what issues they intend to pursue on appeal and because their appeal is not taken in good faith. Plaintiffs' m otion m ust be denied because they have not indicated to the Court which issues they intend to pursue on appeal. A litigant who wishes to 4 proceed in form a pauperis in the court of appeals is required to provide the district court with an affidavit that "states the issues that the party intends to present on appeal." Fed. R. App. P. 24(a)(1)(C); 28 U.S.C. § 1915(a)(1) (requiring affidavit to "state the nature of the . . . appeal and affiant's belief that the person is entitled to redress"). Plaintiffs did not com ply with this requirem ent because their in form a pauperis m otions and notice of appeal contain no indication of the issues that plaintiffs intend to present on appeal. Plaintiffs' com plaint seeks relief under a num ber of constitutional provisions, federal statutes, and state tort-law doctrines. Without a statem ent of the specific issues they intend to pursue in the court of appeals, plaintiffs' in form a pauperis m otion m ust be denied. See McQueen v. Evans, 1995 WL 17797616, at *2 (5th Cir. 1995) (per curiam ) (failure to present issue for appeal in an in form a pauperis motion constitutes abandonment of that issue); see also Sm ith v. Bd. of Brevard County , 20 10 WL 20 260 71, at *1 (M.D. Fla. 20 10 ) (denying in form a pauperis m otion that failed to present issues for appeal); United States v. One 20 0 0 Land Rover, 20 0 8 WL 480 9440 , at *2 (S.D. Ala. 20 0 8) (sam e); W entw orth v. Morgan, 20 0 7 WL 710 167, at *1 (E.D. Ky. 20 0 7) (sam e); Carson v. AJN Holdings, 20 0 7 WL 843845, at *1– 2 (E.D. Tenn. 20 0 7) (sam e). 5 In addition, even if plaintiffs intend to raise all of the argum ents in their com plaint on appeal, their m otion is frivolous because it lacks an arguable basis in law or in fact. As the Court explained in its order granting DHH's m otion to dism iss, plaintiffs cannot state a claim under either the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. § 10 80 1 et seq., or the Developm ental Disabilities and Assistance and Bill of Rights Act of 20 0 0 , 42 U.S.C. § 150 0 1 et seq., because neither statute creates privately enforceable federal rights. See, e.g., Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 994 (1st Cir. 1992); Dow dell v. Love's Travel Shop, No. 7:12CV0 0 516, 20 13 WL 3655666, at *1 (W.D. Va. J uly 12, 20 13). Plaintiffs fail to state a claim under the Am ericans with Disabilities Act because they do not allege that DHH treated Seal or Wright different than others because of any disability. And although the Court construes plaintiffs' com plaint broadly because of their pro se status, see Davison v. Huntington Ingalls, Inc., 712 F.3d 884, 885 (5th Cir. 20 13), the Court cannot discern from plaintiffs' pleadings any possible constitutional claim actionable against DHH under 42 U.S.C. § 1983. Although plaintiffs allege that DHH's vendor was negligent in its provision of NOW-related services, "the Due Process Clause is sim ply not im plicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Herrera v. Millsap, 862 F.2d 1157, 6 1160 (5th Cir. 1989) (quoting Daniels v. W illiam s, 474 U.S. 327, 328 (1986)). As to plaintiffs' rem aining claim s against DHH under state law, those are properly dism issed for lack of jurisdiction. See 28 U.S.C. § 1367(e) (noting that a district court m ay decline to exercise supplem ental jurisdiction over a claim once the court dism isses all claim s over which it had original jurisdiction). For these reasons, plaintiffs fail to dem onstrate that their appeal is taken in good faith. Without evidence that plaintiffs "legal points [are] arguable on their m erits (and therefore not frivolous)," the Court m ust deny their m otion to proceed in form a pauperis. See Arroy o-Jurado, 477 F. App'x at 151. 7 IV. CON CLU SION For the foregoing reasons, plaintiffs' m otion to proceed in form a pauperis is DENIED. New Orleans, Louisiana, this 15th day of J une, 20 16. ___ ___________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 8
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