Dover v. Underwood (INMATE1)

Filing 19

ORDER on the Plaintiffs Notice of Appeal 17 which this Court construes to contain a request for a certificate of appealability and a motion to proceed onappeal in forma pauperis; denying Motion for Certificate of Appealability; denying Motion for Leave to Proceed in forma pauperis; and 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. Signed by Honorable Ira De Ment on 10/18/10. (ydw, )

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Dover v. Underwood (INMATE1) Doc. 19 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 L A R R Y DOVER, #217 258, P la in tiff, v. O F F IC E R RODERICK UNDERWOOD, D e fe n d a n t. ) ) ) ) ) ) ) ) ) Civil Action No. 2:10-CV-499-ID (W O ) ORDER T h is cause is now before the Court on Plaintiff's Notice of Appeal which this Court c o n s tru e s to contain a request for a certificate of appealability and a motion to proceed on a p p e a l in forma pauperis. (Doc. #17). Title 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 Dockets.Justia.com 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's complaint was initially dismissed without prejudice to allow the P la in tiff to proceed with his claims before the state court where the Plaintiff had also filed. The Plaintiff's apparent basis for his current appeal is that he no longer has a case pending in state court. (Doc. #17). Applying the "good faith" standard set forth above, the Court fin d s that the Plaintiff's appeal is without an appropriate legal or factual basis and, a c c o rd in g ly , is frivolous and not taken in good faith. See, e.g., Rudolph v. Allan, supra; B ro w n v. Pena, 441 F. Supp. 1382 (S.D. Fla. 1977), aff'd without opinion, 589 F.2d 1113 (5 th Cir. 1979). Accordingly, it is CONSIDERED and ORDERED 1. that the Plaintiff's request for a certificate of appealability (Doc. #17) be and the s a m e is hereby DENIED; 2 . that the Plaintiff's Motion to Proceed in Forma Pauperis (Doc. #17) 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 October, 2010. /s / Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE 2

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