Hunter v. Easterling et al (INMATE 2)

Filing 14

ORDER denying 12 Motion for Leave to Appeal in forma pauperis; denying 11 Motion for Certificate of Appealability; and that the appeal in this cause is certified, pursuant to 28 U.S.C.A. § 1915(a), as not taken in good faith. Signed by Honorable Ira De Ment on 8/18/2010. (dmn)

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Hunter v. Easterling et al (INMATE 2) Doc. 14 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION A R T H U R LEE HUNTER, #199 696, P la in tiff, v. E A S T E R L IN G , et al., D e fe n d a n ts . ) ) ) ) ) ) ) ) ) Civil Action No. 1:10-CV-302-ID (W O ) ORDER T h is cause is now before the Court on Plaintiff's Notice of Appeal which contains a re q u e s t for a certificate of appealability. (Doc. #11). The Plaintiff has also filed a Motion to Proceed in Forma Pauperis. (Doc. #12). T itle 28 U.S.C.A. 1915(a) provides that "[a]n appeal may not be taken in forma p a u p e ris if the trial court certifies in writing that it is not taken in good faith." In making this d e te rm in a tio n as to good faith, a court must use an objective standard, such as whether the a p p e a l is "frivolous," Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921 (1 9 6 2 ), or "has no substantive merit." United States v. Bottoson, 644 F.2d 1174, 1176 (5th C ir. Unit B May 15, 1981) (per curiam), cert. denied, 454 U.S. 903, 102 S. Ct. 411 (1981)1 ; s e e also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam), cert. denied, 457 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981). 1 1 U.S. 1122, 102 S. Ct. 2938 (1982); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981), cert. d e n ie d , 456 U.S. 1010, 102 S. Ct. 2303 (1982). The Plaintiff in this case has failed to point to any particular issue that he wishes to ra ise on appeal. The Court has reviewed the Recommendation of the Magistrate Judge (Doc. # 7 ) and the Court's Order adopting the Recommendation (Doc. #9) and is unable to find a v a lid basis for appeal. Applying the "good faith" standard set forth above, the Court finds th a t the Plaintiff's appeal is without a legal or factual basis and, accordingly, is frivolous and n o t taken in good faith. See, e.g., Rudolph v. Allan, supra; Brown v. Pena, 441 F. Supp. 1382 (S .D . Fla. 1977), aff'd without opinion, 589 F.2d 1113 (5th Cir. 1979). Accordingly, it is CONSIDERED and ORDERED 1. that the Plaintiff's request for a certificate of appealability (Doc. #11) be and the s a m e is hereby DENIED; 2 . that the Plaintiff's Motion to Proceed in Forma Pauperis (Doc. #12) be and the s a m e is hereby DENIED; and 3 . that the Plaintiff's appeal be and the same is hereby CERTIFIED, pursuant to 28 U .S .C .A . 1915(a), as not taken in good faith. D o n e this the 18th day of August, 2010. /s / Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE 2

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