Cooper v. Carter et al (INMATE 2)

Filing 21

ORDER: This cause is now before the Court on the plaintiff's 20 Motion for Appeal which the court construes to be a notice of appeal containing a motion for leave to proceed on appeal in forma pauperis. Accordingly, it is ORDERED that the plaintiff's motion to proceed on appeal in forma pauperis is DENIED 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 Hon. Chief Judge Mark E. Fuller on 12/17/2008. (dmn)

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION DAVID COOPER, Plaintiff, v. ANTHONY TODD CARTER, et al., Defendants. ) ) ) ) ) ) ) ) CASE NO. 2:07-cv-011-MEF WO ORDER T h is cause is now before the Court on the plaintiff's "Motion for Appeal" which the c o u rt construes to be a notice of appeal containing a motion for leave to proceed on appeal in forma pauperis (Doc. #20) filed on December 8, 2008. T itle 28 U.S.C. 1915(a)(3) provides that "[a]n appeal may not be taken in forma p a u p e r is if the trial court certifies in writing that it is not taken in good faith." 1 In making th is determination as to good faith, a court must use an objective standard, such as whether th e appeal is "frivolous." Coppedge v. United States, 369 U.S. 438, 445 (1962). "The statute provides that a court `may dismiss the case if the allegation of poverty is untrue, or if 1 See 28 U.S.C. 1915(e): (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-(A) the allegation of poverty is untrue; or (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. s a tis f ie d that the action is frivolous or malicious.'" Attwood v. Singletary, 105 F.3d 610, 613 (1 1 th Cir. 1997) (citing 28 U.S.C. 1915(d) (1996)). This circuit has defined a frivolous appeal under section 1915(d) a s being one "`without arguable merit.'" Harris v. Menendez, 8 1 7 F.2d 737, 739 (11th Cir.1987)(quoting Watson v. Ault, 525 F .2 d 886, 892 (5th Cir.1976)). "`Arguable means capable of b e in g convincingly argued.'" Moreland v. Wharton, 899 F.2d 1 1 6 8 , 1170 (11th Cir.1990) (per curiam) (quoting Menendez, 8 1 7 F.2d at 740 n. 5); see Clark, 915 F.2d at 639 ("A lawsuit [ u n d e r section 1915(d)] is frivolous if the `plaintiff's realistic c h a n ce s of ultimate success are slight.'" (quoting Moreland, 899 F .2 d at 1170)). Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991), reh'g denied, 503 U.S. 999 (1992); see a ls o Weeks v. Jones, 100 F.3d 124, 127 (11th Cir. 1996) (stating that "Factual allegations are f riv o lo u s for purpose of [28 U.S.C.] 1915(d) when they are `clearly baseless;' legal theo ries are frivolous when they are `indisputably meritless.'") (citations omitted). A p p lyin g the foregoing standard, this Court is of the opinion that the plaintiff's appeal is without a legal or factual basis and, accordingly, is frivolous and not taken in good faith. A c c o rd in g ly, it is ORDERED that the plaintiff's motion to proceed on appeal in forma p a u p e r is is DENIED and that the appeal in this cause is certified, pursuant to 28 U.S.C.A. 1915(a), as not taken in good faith. D O N E this the 17 th day of December, 2008. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 2

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