Davis v. Sherman ( 2004 )

ORDER

Gerold Lee Davis appeals a district court order that imposed the $105 appellate filing fee against Davis in his appeal taken from an earlier district court judgment that dismissed his civil rights complaint. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Davis filed his complaint in the district court alleging that the three named defendants, a United States Magistrate Judge, a United States District Court Judge, and the Clerk of this court, somehow deprived him of his constitutional rights in earlier civil litigation. The district court dismissed Davis’s complaint as frivolous or for failure to state a claim upon which relief may be granted. Davis filed a timely notice of appeal taken from the district court’s judgment, and the appeal was docketed in this court as Case No. OS-3231. The district court then entered its order assessing the appellate filing fee. Davis filed a timely notice of appeal taken from the district court’s order assessing the appellate filing fee. The same day, this court dismissed Davis’s appeal in Case No. 03-3231 for want of prosecution. This court then denied Davis pauper status in this case because an appeal would be frivolous, and Davis has now paid the appellate filing fee.

Upon consideration, the district court’s order is affirmed because Davis has waived appellate review of the district court’s order by fading to address the order in his brief on appeal. See Indeck Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir.2000); Robinson v. Jones, 142 F.3d 905, 906 (6th Cir.1998). Nonetheless, it is noted that the district court properly issued a deficiency order after Davis failed to move for pauper status or pay the appellate filing fee, then properly assessed the filing fee when Davis failed to comply with the deficiency order by either moving for pauper status or paying the filing fee. See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir.1997). Accordingly, Davis’s appeal is meritless in any event.

For the foregoing reasons, the district court’s order is affirmed. See Rule 34(j)(2)(C), Rules of the Sixth Circuit.