Order denying 59 Motion to Proceed In Forma Pauperis on Appeal — No. 1:21-cv-00748 (Dkt. 95)
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An order of U.S. District Judge Steven J. McAuliffe in Natasha Marie Athens v. Bank of America, N.A., and Meghan Scholz, Case No. 21-cv-748-SM, in the U.S. District Court for the District of New Hampshire, dated February 4, 2022 and filed as Document 95. It rules on five motions (Doc. Nos. 59, 63-1, 82, 85, 86-1) seeking leave to proceed in forma pauperis in the plaintiff's interlocutory appeals, assigned First Circuit Case Nos. 21-1964, 21-1965, 22-1004, 22-1083 and 22-1084. Applying the objective good faith standard of 28 U.S.C. § 1915(a)(3), the court finds each appeal frivolous or lacking any arguable basis in law or fact. It certifies that the appeals are not taken in good faith and denies each motion.
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“Order denying 59 Motion to Proceed In Forma Pauperis on Appeal — No. 1:21-cv-00748 (Dkt. 95).”
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Case 1:21-cv-00748-SM Document 95 Filed 02/04/22 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Natasha Marie Athens
v. Case No. 21-cv-748-SM
Bank of America, N.A.,
and Meghan Scholz
O R D E R
Before the court are notices of interlocutory appeal filed
by plaintiff, Natasha Marie Athens, as well as five motions
(Doc. Nos. 59, 63-1, 82, 85, 86-1), seeking leave to proceed in
forma pauperis (“IFP”) in her appeals in the following matters:
• Her appeal of the November 22, 2021 Order, as to
which Ms. Athens filed her (first) notice of appeal
(Doc. No. 53). The First Circuit assigned Case No.
21-1964 to that appeal.
• Her appeal of the November 23, 2021 Order, as to
which Ms. Athens filed her (second) notice of appeal
(Doc. No. 54). The First Circuit assigned Case No.
21-1965 to that appeal.
• Her appeal of the December 6, 2021 Order (Doc.
No. 60), as to which Ms. Athens filed her (third)
notice of appeal (Doc. No. 63). The First Circuit
assigned Case No. 22-1004 to that appeal.
• Her appeal of the January 21, 2022 Order (Doc.
Case 1:21-cv-00748-SM Document 95 Filed 02/04/22 Page 2 of 7
No. 78), which is the subject of three notices of
appeal (her fourth, fifth, and seventh such notices),
see Doc. Nos. 81, 84, 87. The First Circuit assigned
Case No. 22-1083 to that appeal.
• Her appeal of the January 25, 2022 Order, which
is the subject of her (sixth) notice of appeal (Doc.
No. 86. The First Circuit assigned Case No. 22-1084
to that appeal.
Standard
In determining whether an applicant may proceed on appeal
without pre-paying the filing fee, pursuant to 28 U.S.C.
§ 1915(a)(3) and Fed. R. App. P. 24(a), this court considers,
among other things, the applicant’s objective good faith. See
28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438,
445 (1962). “Good faith for purposes of § 1915(a)(3) is judged
by an objective standard; i.e., whether the litigant ‘seeks
appellate review of any issue not frivolous.’” Dulaurence v.
Telegen, No. 15-1537, 2016 U.S. App. LEXIS 24070, at *1 (1st
Cir. Nov. 30, 2016) (quoting Coppedge, 369 U.S. at 445).
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Case 1:21-cv-00748-SM Document 95 Filed 02/04/22 Page 3 of 7
Discussion 1
I. (First) IFP Motion (Doc. No. 59)
Ms. Athens’s (first) motion to proceed IFP (Doc. No. 59) on
appeal concerns First Circuit Case Nos. 21-1964 and 21-1965.
The court addresses below whether those two appeals have been
taken in objective good faith, in ruling on that IFP motion.
A. Case No. 21-1964
Applying a standard that is the same as the objective good
faith standard under 28 U.S.C. § 1915(a)(3), this court
previously found that Ms. Athens’s appeal of the November 22,
2021 Order was frivolous. See Dec. 7, 2021 Order. Her appeal
(Doc. No. 53) of that Order, assigned Case No. 21-1964 by the
First Circuit, lacks any arguable basis in law or fact and is
not taken in good faith. Ms. Athens’s (first) motion to proceed
IFP on appeal (Doc. No. 59) is DENIED, with respect to Case No.
21-1964.
1 Each of the orders at issue in Ms. Athens’s appeals is an
interlocutory order. Such nonfinal orders are not appealable as
a matter of right, see 28 U.S.C. § 1292; Coopers & Lybrand v.
Livesay, 437 U.S. 463, 474 (1978) (in general, “[a] party
seeking review of a nonfinal order must first obtain the consent
of the trial judge” (citing 28 U.S.C. § 1292(b))). This court
has not been asked to make any finding about the propriety of an
interlocutory appeal under § 1292(b). Moreover, such
certification would not have been granted, if it had been
requested, as the orders do not involve controlling questions of
law as to which there is a substantial ground for a difference
of opinion, and considering the issues raised in her appeals at
this time will not advance the ultimate termination of the
litigation. Cf. 28 U.S.C. § 1292(b).
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Case 1:21-cv-00748-SM Document 95 Filed 02/04/22 Page 4 of 7
B. Case No. 21-1965
Ms. Athens’s (first) motion to proceed IFP on appeal (Doc.
No. 59) also seeks leave to proceed IFP in her appeal of the
November 23, 2021 Order. See Notice of Appeal (Doc. No. 54).
That appeal was assigned Case No. 21-1965 by the First Circuit.
The November 23 Order denied Ms. Athens’s motion to recuse
Magistrate Judge Johnstone and the undersigned District Judge.
Her appeal of the order denying her motion to recuse those
judicial officers repeats her unfounded accusations of judicial
bias and criminal conduct. That appeal is frivolous and neither
grounded in any arguable basis in law or fact, nor taken in good
faith. Accordingly Ms. Athens’s motion to proceed IFP in that
appeal (Doc. No. 59) is DENIED, with respect to Case No. 21-
1965.
II. (Second) IFP Motion (Doc. No. 63-1)
Ms. Athens’s second IFP motion (Doc. No. 63-1) seeks leave
to proceed IFP in her appeal of the December 6, 2021 Order (Doc.
No. 60). Ms. Athens entitled her notice of appeal (Doc. No. 63)
of that order as an appeal of the “dismissal of the Case in
Chief.” The December 6 Order did not dismiss her claims;
rather, that Order took defendants’ motion to dismiss under
advisement pending further briefing. Ms. Athens’s appeal of
that interlocutory order, assigned Case No. 22-1004 by the First
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Case 1:21-cv-00748-SM Document 95 Filed 02/04/22 Page 5 of 7
Circuit, is not grounded in any arguable basis in law or fact,
is frivolous, and is not taken in good faith. Accordingly Ms.
Athens’s motion to proceed IFP in that appeal (Doc. No. 63-1) is
DENIED.
III. (Third) and (Fourth) IFP Motions (Doc. Nos. 82, 85)
Ms. Athens’s (third) and (fourth) IFP motions (Doc. Nos.
82, 85) seek leave to proceed IFP in her multiple appeals of the
January 21, 2022 Order (Doc. No. 78). The pertinent notices of
appeal (Doc. Nos. 81, 84, 87), underlying that appeal reassert
her baseless claims of a criminal conspiracy and judicial bias,
her unfounded claim of defendants’ “default,” and her other
assertions of wrongdoing and error which lack any arguable basis
in law or fact. Her appeal in that regard, assigned First
Circuit Case No. 22-1083, is frivolous and not taken in good
faith. Accordingly, each of Ms. Athens’s motions to proceed IFP
(Doc. Nos. 82, 85) in her appeal of the January 21 Order is
DENIED.
IV. (Fifth) IFP Motion (Doc. No. 86-1)
Ms. Athens’s (fifth) IFP motion (Doc. No. 86-1) seeks leave
to proceed IFP in her appeal of the January 25, 2022 Order
(granting defendants’ motion to strike). Among the documents
stricken by that Order was Document No. 68, a brief filed by Ms.
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Case 1:21-cv-00748-SM Document 95 Filed 02/04/22 Page 6 of 7
Athens, which she entitled, “Brief on Appeal.” This court
struck that document for reasons stated in defendants’ motion,
and because her “Brief on Appeal” appeared to be addressed to
the First Circuit and had been filed in the wrong court. See
Jan. 25, 2022 Order.
Ms. Athens’s appeal of the January 25 Order targets the
decision to strike Doc. No. 68. The pertinent notice of appeal,
see Doc. No. 86, asserts that Document No. 68 cannot be “sealed”
by the court as it contains “evidence” of a “bank crime.” Those
assertions about the court’s action and the nature of the filing
do not rest on any arguable basis in fact or law. Her appeal of
the January 25 Order, assigned Case No. 22-1084 by the First
Circuit, is not taken in good faith. Accordingly Ms. Athens’s
motion to proceed IFP in that appeal (Doc. No. 86-1) is DENIED.
Conclusion
For the foregoing reasons, the court certifies that Ms.
Athens’s appeals of the following orders are not taken in good
faith: the November 22, 2021 Order (assigned First Circuit Case
No. 21-1964); the November 23, 2021 Order (assigned First
Circuit Case No. 21-1965); the December 6, 2021 Order (assigned
First Circuit Case No. 22-1004); the January 21, 2022 Order
(assigned First Circuit Case No. 22-1083); and the January 25,
2022 Order (assigned First Circuit Case No. 22-1084). Each of
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Case 1:21-cv-00748-SM Document 95 Filed 02/04/22 Page 7 of 7
Ms. Athens’s motions (Doc. Nos. 59, 63-1, 82, 85, 86-1) seeking
leave to proceed IFP in those appeals is DENIED. The clerk’s
office is directed to notify the parties and the First Circuit
regarding this Order. See Fed. R. App. P. 24(a)(4).
SO ORDERED.
__________________________
Steven J. McAuliffe
United States District Judge
February 4, 2022
cc: Natasha Marie Athens, pro se
Thomas J. Pappas, Esq.
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