Gaither v. Alabama Department of Corrections et al (INMATE 2)

Filing 36

ORDER: This cause is now before the court on plaintiff's 34 notice of appeal, which the court is treating as a Motion for Leave to Proceed on Appeal in forma pauperis. 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. § 1915(a), as not taken in good faith. Signed by Honorable Judge Myron H. Thompson on 6/23/2014. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ABDUL GAITHER,

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Plaintiff,
v.
ALA. DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

CIVIL ACTION NO.
2:12cv181-TMH
(WO)

ORDER
This cause is now before the court on plaintiff's
notice of appeal (doc. no. 34), which the court is treating
as a motion to proceed on appeal in forma pauperis.
28 U.S.C. § 1915(a) provides that, "An appeal may not
be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith."

In making

this determination as to good faith, a court must use an
objective

standard,

such

as

whether

the

appeal

is

"frivolous," Coppedge v. United States, 369 U.S. 438, 445
(1962), or "has no substantive merit."

United States v.

Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15,

1981) (per curiam), cert. denied, 454 U.S. 903 (1981); see
also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982)
(per curiam), cert. denied, 457 U.S. 1122 (1982); Morris
v. Ross, 663 F.2d 1032 (11th Cir. 1981), cert. denied, 456
U.S. 1010 (1982).
of

the

opinion,

recommendation

of

Applying this standard, this court is
for

the

the

reasons

magistrate

stated
judge,

in

the

that

the

plaintiff's appeal is without a legal or factual basis and,
accordingly, is frivolous and not taken in good faith.
See, e.g., Rudolph v. Allen, 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 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. § 1915(a), as not taken in good faith.
DONE, this the 23rd day of June, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE