Anderson v. Groveland Police Department et al

Filing 136

REPORT AND RECOMMENDATIONS re 127 MOTION for leave to appeal in forma pauperis. Signed by Magistrate Judge Philip R. Lammens on 11/21/2016. (CAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GEOFFREY H. ANDERSON,
Plaintiff,
v.

Case No: 5:15-cv-26-Oc-30PRL

JOHN MOORE, CHARLES W.
RUSSELL, JOHN FLYNN, ANDY
AULD, SCOTT PENVOSE and CITY OF
GROVELAND
Defendants.

REPORT AND RECOMMENDATION1
Pending before the Court is Plaintiff’s motion to proceed on appeal in forma pauperis.
(Doc. 127). After reviewing the motion, I deferred ruling and afforded Plaintiff an opportunity to
file a new affidavit as his original affidavit failed to comply with the Federal Rule of Appellate
Procedure 24. (Doc. 129). Unfortunately, Plaintiff has not amended his affidavit and the time
within which he was given to do so has expired.
I.

LEGAL STANDARD

Under Federal Rule of Appellate Procedure 24, a motion to proceed in forma pauperis on
appeal must be filed in the district court and must have an attached affidavit that (1) shows the
party’s inability to pay, (2) claims an entitlement to redress, and (3) states the issues that the party

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Within 14 days after being served with a copy of the recommended disposition, a party may file
written objections to the Report and Recommendation’s factual findings and legal conclusions. See Fed.
R. Civ. P. 72(b)(3); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(B); Local Rule 6.02. A party’s failure
to file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding
or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.

intends to present on appeal. Fed. R. App. P. 24(a)(1). An individual may be allowed to proceed
in forma pauperis (that is, without the payment of the filing fees) if he or she declares in an affidavit
that he or she “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1).
Before a plaintiff is permitted to proceed in forma pauperis on appeal, however, the Court is
obligated to ensure the appeal is being taken in “good faith.” 28 U.S.C. § 1915(a)(3).
“Good faith is demonstrated by seeking appellate review of any issue that is not frivolous
when judged under an objective standard.” United States v. Terry, No. 8:97-CR-273-T-23TBM,
2016 WL 406863, at *2, n.1 (M.D. Fla. Jan. 6, 2016), report and recommendation adopted, No.
8:97-CR-273-T-23TBM, 2016 WL 398160 (M.D. Fla. Feb. 2, 2016) (citing Coppedge v. United
States, 369 U.S. 438, 445 (1962)). “An issue is frivolous if it is without arguable merit either in
law or fact.” Miller v. City of Atl. Beach, No. 3:15-CV-209-J-34PDB, 2015 WL 7731472, at *5
(M.D. Fla. Nov. 4, 2015), report and recommendation adopted, No. 3:15-CV-209-J-34PDB, 2015
WL 7721278 (M.D. Fla. Nov. 30, 2015). In this context, a claim ‘“capable of being convincingly
argued”’ is considered “arguable.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (quoting
Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir.1990)).
II.

DISCUSSION

As noted above, Plaintiff is proceeding pro se in this action. Nevertheless, pro se litigants
are “still required to conform to procedural rules, and the court is not required to rewrite a deficient
pleading.” Washington v. Dept. of Children and Families, 256 F. App’x 326, 327 (11th Cir.
2007).
As set forth in the Court’s prior order, although Plaintiff’s motion lists numerous Counts
of his complaint that were resolved against him, he fails to state what alleged legal or factual errors
related to these Counts that he wishes to appeal. To be sure, numerous dispositive rulings—on

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both motions to dismiss and motions for summary judgment—have been adverse to Plaintiff, see
(Docs. 50, 73, 117, 123), yet Plaintiff does not allege what legal or factual errors the Court made
in these rulings.
Also, while Plaintiff certainly lists “three issues of public importance” that appear to be
relevant to this case, he does not clarify if these are issues that he wishes to assert on appeal and,
even assuming that he does, he fails to state what redress he seeks. In other words, without
knowing how these issues relate to purported factual or legal errors committed in this case and
what redress Plaintiff seeks, I cannot determine whether these issues are capable of being
convincingly argued.
In sum, I am unable to determine whether Plaintiff’s arguments have merit because, as
stated in my previous order, “his affidavit fails to state (1) the issues he wishes to raise on appeal
and to state (2) any claim for redress.” (Doc. 129, p. 2). And despite being given the opportunity
to amend his affidavit, Plaintiff has not amended, nor has he otherwise responded to the order to
amend. Thus I cannot recommend that this appeal is taken in good faith at this time.
III.

RECOMMENDATION

Upon due consideration, it is respectfully RECOMMENDED that Plaintiff’s motion to
proceed in forma pauperis on appeal (Doc. 127) be DENIED.

It is further

RECOMMENDED that the Clerk be directed to notify the Court of Appeals in accordance
with Rule 24(a)(4) of the Federal Rules of Appellate Procedure in the event Plaintiff’s motion is
denied.

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DONE and ORDERED in Ocala, Florida on November 21, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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