Young v. May, et al

Filing 128

ORDER denying 125 Motion for Leave to Appeal in forma pauperis. The Court imposes an initial partial filing fee of $12.07. The Federal BOP is directed to collect payments pursuant to 28:1915(b)(2). Signed by Chief Judge William H. Steele on 6/25/2013. Copy mailed to Plaintiff, BOP & Business Manager at Forrest City Medium. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID M. YOUNG,
Plaintiff,
v.
GEORGE MAY, et al.,
Defendants.

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CIVIL ACTION 13-0091-WS-M

ORDER
This matter comes before the Court on plaintiff David M. Young’s Motion to Proceed In
Forma Pauperis (doc. 125).
On May 22, 2013, the undersigned entered an Order (doc. 110) dismissing plaintiff’s
Bivens claims against defendant George May, an Assistant U.S. Attorney in the Southern District
of Alabama sued in his individual capacity. The May 22 Order concluded that Young’s claims
against May failed to state a claim on which relief could be granted because (a) May was
performing an advocate function for which he was entitled to absolute prosecutorial immunity,
and (b) even if he was not, May would still be entitled to qualified immunity on Young’s claims
because May was performing a discretionary function and was not accused of conduct that would
violate clearly established statutory or constitutional rights.
On June 10, 2013, the undersigned entered another Order (doc. 119) denying plaintiff’s
Motion for Default of defendant Joe Carl Jordan, on the grounds that Jordan’s failure to include a
proper Certificate of Service with his memorandum of law supporting his Rule 12(b) Motion is
not the sort of transgression that warrants the harsh sanction of default. The June 10 Order
further denied plaintiff’s Motion for Joinder, in which he sought to name as a new party
defendant something called “Unknown U.S. Marshall [sic].” The June 10 Order explained that
such joinder fails because fictitious-party pleading is generally prohibited in federal court,
Young’s proposed claim against that fictitious defendant failed to state a viable Fifth
Amendment claim against anyone, and this claim would appear obviously untimely on its face.

Finally, the June 10 Order denied plaintiff’s Motion for Issuance of Subpoena on the
aforementioned “Unknown U.S. Marshall [sic]” as functionally impossible and legally baseless.
Young has filed Notices of Appeal (docs. 113 & 122) from both the May 22 Order and
the June 10 Order. Both aspects of this appeal are frivolous. Not only are the legal issues that
Young seeks to litigate on appeal devoid of merit, but he is also bringing a procedurally
improper interlocutory appeal. See, e.g., Wajnstat v. Oceania Cruises, Inc., 684 F.3d 1153, 1155
(11th Cir. 2012) (“We are generally precluded from hearing interlocutory appeals under the final
judgment rule.”); Edwards v. Prime, Inc., 602 F.3d 1276, 1290 (11th Cir. 2010) (ordinarily, “the
general congressional policy against piecemeal review will preclude interlocutory appeal”)
(citations omitted). His action remains active and ongoing against defendant Joe Carl Jordan
today. No final judgment has been entered pursuant to Rule 54(b), Fed.R.Civ.P., as to any claim
or any party. This Court has not been asked to certify this or any part of the case for
interlocutory appeal under 28 U.S.C. § 1292(b) or Rule 54(b), and is of the opinion that such
certification would be inappropriate and unwarranted here, in any event. See OFS Fitel, LLC v.
Epstein, Becker and Green, P.C., 549 F.3d 1344, 1359 (11th Cir. 2008) (recognizing that Ҥ
1292(b) sets a high threshold for certification to prevent piecemeal appeals,” and that “[m]ost
interlocutory orders do not meet this test”).
Accompanying Young’s Notices of Appeal is a Motion to Proceed In Forma Pauperis,
through which he requests leave to proceed on appeal without prepayment of fees and costs.
Even if a petitioner is economically eligible, “[a]n appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3); see
also Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). An appeal is not taken
in good faith if it is plainly frivolous. See United States v. Youngblood, 116 F.3d 1113, 1115
(5th Cir. 1997); DeSantis v. United Technologies Corp., 15 F. Supp. 2d 1285, 1289 (M.D. Fla.
1998) (appeal is not taken in good faith when it fails to “seek[] appellate review of any issue that
is not frivolous”), aff’d, 193 F.3d 522 (11th Cir. 1999); United States v. Durham, 130 F. Supp.
445 (D.C. D.C. 1955) ("good faith" means the existence of a substantial question or one which
has merit and is not frivolous); Sejeck v. Singer Mfg. Co., 113 F. Supp. 281 (D.C. N.J. 1953) ("in
good faith" means that points on which appeal is taken are reasonably arguable); United States v.
Gicinto, 114 F. Supp. 929 (W.D. Mo. 1953) (the application should be denied if the trial court is
of opinion that the appeal is frivolous, and without merit, and a futile proceeding); see generally
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Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (action is frivolous for § 1915 purposes if
it is without arguable merit either in law or in fact); Bilal v. Driver, 251 F.3d 1346, 1349 (11th
Cir. 2001) (same). For both the merits-based and procedural reasons addressed supra, the
undersigned concludes that Young’s appeal is frivolous. Accordingly, the Court hereby certifies
that this appeal is not taken in good faith; therefore, Young cannot appeal in forma pauperis, and
his Motion to Proceed In Forma Pauperis (doc. 125) on appeal is denied.
Pursuant to 28 U.S.C. § 1915 (as amended by the Prison Litigation Reform Act), the
Court has reviewed the prisoner’s inmate account statement for the most recent six-month
period. That inmate account statement reflects average monthly deposits to Young’s account of
$60.38 for the 6-month period immediately preceding the filing of the Notice of Appeal. The
Court has also reviewed Young’s signed Prisoner Consent Form on Appeal (doc. 124) dated June
17, 2013, wherein he expressly authorizes payment of the required $455.00 appellate filing fee
from his inmate account in periodic installments in accordance with 28 U.S.C. § 1915(b) until
the full filing fee is paid. Based on Young’s account statement, the Court imposes an initial
partial filing fee of $12.07, which is 20% of the average monthly deposits in his account for the
six-month period immediately preceding the filing of the notices of appeal. See 28 U.S.C.
§ 1915(b)(1)(A). Pursuant to 28 U.S.C. § 1915(b)(2), the Court directs the Federal Bureau of
Prisons or its designee every month to withdraw twenty percent of the preceding month’s income
credited to the prisoner’s inmate account and to remit that amount to the District Court Clerk
each time the amount in the account exceeds $10.00 until the total filing fee of $455.00 has been
paid in full. These payments shall identify plaintiff’s name and the case number assigned to this
action, and shall be paid by check made payable to “Clerk, U.S. District Court.”
The Clerk’s Office is directed to send a copy of this Order to the Federal Bureau of
Prisons and to the business manager of the institution where plaintiff is incarcerated.
DONE and ORDERED this 25th day of June, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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