OpenJurist

914 F2d 256 Johnson-El v. Evans G

914 F.2d 256

Clozell JOHNSON-EL, Plaintiff-Appellant,
v.
Mychael Dianne EVANS, Raymond G. Toombs, Warden,
individually and in their official capacities,
Defendants-Appellees.

NO. 90-1693.

United States Court of Appeals, Sixth Circuit.

Sept. 7, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before MERRITT, Chief Judge, and CELEBREZZE and BAILEY BROWN, Senior Circuit Judges.

ORDER

1

In an opinion and final judgment entered on May 31, 1990, the district court granted defendants summary judgment in this action under 42 U.S.C. Sec. 1983. In a separate order, the district court certified that any issues presented on appeal would be frivolous; therefore, an appeal could not be taken in good faith. 28 U.S.C. Sec. 1915(a). This revoked the plaintiff's in forma pauperis status, and he appealed from the certification order.

2

If the district court finds that an appeal is not taken in good faith and denies leave to proceed in forma pauperis, the appellant may seek identical relief from the court of appeals. Coppedge v. United States, 369 U.S. 438, 445-46 (1962); Borning v. Hymel, 764 F.2d 1041, 1042 (5th Cir.1985) (per curiam). The appropriate mechanism, however, is set forth in Fed.R.App.P. 24, which substitutes a motion procedure for an appeal. Borning, 764 F.2d at 1042; Sills v. Bureau of Prisons, 761 F.2d 792, 795 (D.C.Cir.1985). Compliance with Rule 24, not the filing of another notice of appeal, is required before this court will make a threshold determination of whether an appellant should be granted leave to proceed in forma pauperis.

3

Accordingly, it is ORDERED that this appeal is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.