Anderson v. Groveland Police Department et al

Filing 138

ORDER granting 127 Plaintiff's Motion for leave to appeal in forma pauperis and vacating 136 the Report and Recommendations. Signed by Magistrate Judge Philip R. Lammens on 11/22/2016. (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.

ORDER
Pro se Plaintiff filed this case January 2015. (Doc. 1). After he amended his complaint
(Docs. 5, 8), the Court granted Plaintiff’s motion to proceed at trial in forma pauperis (Docs. 9,
10). To date, all of Plaintiff’s claims have either been voluntarily dropped by Plaintiff or resolved
against him. (Docs. 50, 73, 117, 123).
Now, Plaintiff seeks to proceed on appeal in forma pauperis.

(Doc. 127).

After

reviewing his 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). I then recommended that Plaintiff’s motion be denied because “despite being given the
opportunity to amend his affidavit, Plaintiff has not amended, nor has he otherwise responded to
the order to amend.” (Doc. 136, p. 3). Plaintiff has now, however, responded and filed a new

affidavit. (Doc. 137). Though untimely, and containing inappropriate content, the Court will
consider the affidavit and specific legal issues he seeks to challenge on appeal.1
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
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). “On the other hand, where an issue or claim is arguable,
but ultimately will be unsuccessful, it should be allowed to proceed.” Williams v. Davey Tree
Expert Co., No. 8:10-CV-2303-T-30TBM, 2011 WL 6314207, at *2 (M.D. Fla. Nov. 30, 2011),

1

Plaintiff’s inability to communicate his frustration with the litigation process has now risen to the
level of implied threats. (See Doc. 137). Plaintiff’s lack of civility and the multiple warnings he has
received on this issue are well documented in this case. (Docs. 34, 50, 64, 73, 77, 90, 94, 98, 105, 106,
107, 112, 113, 120, 123). Plaintiff would be far better served timely addressing the factual and legal issues
he seeks to pursue, as opposed to spending time writing inappropriate things in his filings.
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report and recommendation adopted, No. 8:10-CV-2303-T-30TBM, 2011 WL 6314202 (M.D.
Fla. Dec. 16, 2011) (citing Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 515 (11th Cir.
1991)).
Plaintiff raises numerous arguable claims here. For instance, he raises several challenges
to factual and legal determinations made by the Court, along with challenging the Court’s
discretion to sanction him. See, e.g., (Doc. 137, Ex. A.). Accordingly, given that the Court has
already determined that Plaintiff is indigent and entitled to proceed in forma pauperis, his motion
(Doc. 127) is due to be GRANTED. Plaintiff is entitled to proceed on appeal without paying or
giving security for fees and costs. The Court’s previous Report and Recommendation (Doc. 136)
is VACATED.
DONE and ORDERED in Ocala, Florida on November 22, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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