Smith v. Ivey et al (MAG+)

Filing 12

ORDER: This cause is now before the court on plaintiff's notice of appeal (Doc. 10 ), which the court is treating as a motion 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 7/5/2024. (c/s) (LAB)

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION PETER J. SMITH, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. KAY IVEY, Three Term Alabama Governor, et al., Defendants. CIVIL ACTION NO. 2:24cv221-MHT (WO) ORDER This cause is now before the court on plaintiff's notice of appeal (Doc. 10), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915(a)(3) provides that “an appeal may not be taken certifies faith.” was in in writing pauperis that it if is the not trial taken court in good See also F.R.A.P. 24(a)(3)(A) (“A party who permitted district-court forma forma pauperis to proceed action without ... in forma may further pauperis proceed on in appeal authorization, the in unless ... the district court--before or after the notice of appeal is filed--certifies that the appeal 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); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981). Applying this standard, this court is of the opinion, for the reasons stated in the recommendation (Doc. 7), 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 2 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 5th day of July, 2024. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 3

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