Williams v. Stewart

Filing 11

Order re: 10 Consent Form filed by Wendy Williams. Williams' motion to proceed on appeal in forma pauperis, so construed from her Prisoner Consent Form on Appeal (doc. 10), is denied. Given Williams' status under the "three-strikes" provision of 28 U.S.C. § 1915(g), if she wishes to proceed on appeal, she must prepay the entire filing fee. Signed by Chief Judge William H. Steele on 5/7/2014. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WENDY WILLIAMS,
Plaintiff,
v.
SARAH STEWART,
Defendant.

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CIVIL ACTION 14-0109-WS-N

ORDER
This matter comes before the Court on plaintiff Wendy Williams’ Prisoner Consent Form
on Appeal (doc. 10). In that document, Williams, an Alabama prisoner proceeding pro se,
expresses her desire to proceed on appeal in forma pauperis. Even though she has not filed a
separate IFP motion on appeal, the Court liberally construes her Prisoner Consent Form as a
motion to proceed on appeal without prepayment of costs.
On March 18, 2014, the undersigned entered an Order (doc. 5) and Judgment (doc. 6)
adopting the Magistrate Judge’s Report and Recommendation (doc. 3), and dismissing this
prisoner § 1983 action without prejudice pursuant to 28 U.S.C. § 1915(g). On March 27, 2014,
Williams filed a Notice of Appeal (doc. 7) from the March 18 Order and Judgment.
Now, Williams seeks leave to pursue her 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
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).
The Magistrate Judge’s Report and Recommendation observed that Williams has
“barraged this Court with § 1983 actions” in the past, and that at least four of those prior actions
had been dismissed either as frivolous or for failure to state a claim upon which relief may be
granted. As such, the Magistrate Judge concluded that Williams’ present action falls squarely
within the provisions of 28 U.S.C. § 1915(g), which generally forbids a prisoner from bringing a
civil action or appeal in forma pauperis “if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of serious
injury.” 28 U.S.C. § 1915(g). Williams’ Complaint lacking specific fact allegations suggesting
the presence or imminent likelihood of serious physical injury, the Magistrate Judge
recommended that it be dismissed without prejudice. The March 18 Order and Judgment
adopted the Report and Recommendation in full, and dismissed the Complaint without prejudice.
Because this Court has found that Williams’ efforts to proceed in forma pauperis in this
action are barred by operation of the three-strikes provisions of § 1915(g), she may not proceed
on appeal without prepayment of fees and costs. Moreover, she is not permitted to pay the filing
fee in installments. See, e.g., Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998) (“The only
exception to section 1915(g) is if the frequent filer prisoner is under imminent danger of serious
injury.”) (emphasis added and internal quotation marks omitted); Pinson v. Grimes, 2010 WL
3096147, *2 (11th Cir. Aug. 9, 2010) (explaining that § 1915(g) “requires frequent filer prisoners
to prepay the entire filing fee before federal courts may consider their lawsuits and appeals”);
Simmons v. Zloch, 2005 WL 2952352, *2 (11th Cir. Nov. 5, 2005) (“Simmons’s argument that §
1915(b)(4) allows him to avoid § 1915(g) or pay the filing fee in installments after filing a
complaint is without merit.”).

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In light of the foregoing considerations, Williams’ motion to proceed on appeal in forma
pauperis, so construed from her Prisoner Consent Form on Appeal (doc. 10), is denied. Given
Williams’ status under the “three-strikes” provision of 28 U.S.C. § 1915(g), if she wishes to
proceed on appeal, she must prepay the entire filing fee.
DONE and ORDERED this 7th day of May, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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