Spurlock v. Hurst

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2228
GILBERT L. SPURLOCK,
Plaintiff - Appellant,
v.
DANA R. HURST, Colonel; UNITED STATES ARMY CORPS OF
ENGINEERS,
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Joseph R. Goodwin,
Chief District Judge. (3:09-cv-00035)
Submitted: July 20, 2010 Decided: August 13, 2010
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gilbert L. Spurlock, Appellant Pro Se. Carol Ann Casto,
Assistant United States Attorney, Charleston, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gilbert L. Spurlock seeks to appeal the district
court’s order adopting the recommendation of the magistrate
judge and dismissing his complaints on jurisdictional and
sovereign immunity grounds. “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)(3) (2006).
Here, the district court denied Spurlock permission to proceed
in forma pauperis, certifying in writing that the appeal was not
taken in good faith.
We review the district court’s denial of leave to
proceed in forma pauperis on appeal for abuse of discretion.
See Harvey v. Taylor Country Farms, Ltd., 1992 WL 166502, at *1
(4th Cir. 1992) (No. 91-1849) (unpublished) (citing Williams v.
Field, 394 F.2d 329 (9th Cir. 1968)). The district court’s
certification that the appeal is taken in bad faith controls in
the absence of some showing that the district court itself made
such a determination in bad faith. See Maloney v. E.I. Du Pont
de Nemours & Co., 396 F.2d 939 (D.C. Cir. 1967). We conclude
that Spurlock has not made such a showing. Accordingly, we
grant the Appellees’ motion to dismiss the appeal, deny leave to
proceed in forma pauperis, deny Spurlock’s motions to subpoena
documents, to schedule oral argument, and to proceed without
payment of fees, and dismiss the appeal. We dispense with oral
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argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED
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