THORNTON v. ATHENS-CLARKE COUNTY UNIFIED GOVERNMENT, et al

Filing 36

ORDER denying 33 Motion for Leave to Appeal in forma pauperis Ordered by US DISTRICT JUDGE CLAY D LAND on 08/27/2018 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
BRIAN KEITH THORNTON,

Plaintiff,
v.
ATHENS-CLARKE COUNTY
UNIFIED GOVERNMENT, et al.,
Defendants.

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Case No. 3:17-cv-00112-CDL

ORDER
Plaintiff Brian Keith Thornton filed a motion for leave to appeal in forma pauperis
(ECF No. 33) from the Court’s May 18, 2018, Order granting the Defendant’s motion to
enforce judgment and dismissing Plaintiff’s claims against the Athens-Clarke County
Unified Government (“ACC”). Applications to appeal in forma pauperis are governed by
28 U.S.C. § 1915 and Fed. R. App. P. 24. 28 U.S.C. § 1915 provides:
(a)(1) [A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security therefore, by a person
who submits an affidavit that includes a statement of all assets such prisoner
possesses that the person is unable to pay such fees or give security therefor.
Such affidavit shall state the nature of the action, defense or appeal and
affiant’s belief that the person is entitled to redress.
...
(3) An appeal may not be taken in forma pauperis if the trial court certifies
in writing that it is not taken in good faith.
Similarly, Fed. R. App. P. 24(a) provides:
(1) [A] party to a district-court action who desires to appeal in forma pauperis
must file a motion in the district court. The party must attach an affidavit
that:

(A)
(B)
(C)

shows . . . the party’s inability to pay or to give security for
fees and costs;
claims an entitlement to redress; and
states the issues that the party intends to present on appeal.

(2) If the district court denies the motion, it must state its reasons in writing.
Thus, the Court must make two determinations when faced with an application to
proceed in forma pauperis. First, it must determine whether the plaintiff is financially able
to pay the filing fee required for an appeal. Plaintiff’s application and accompanying
affidavit suggest that he is currently unable to pay the $505 filing fee.
Next, the Court must determine if the plaintiff has satisfied the good faith
requirement. “‘[G]ood faith’ . . . must be judged by an objective standard.” Coppedge v.
United States, 369 U.S. 438, 445 (1962). The plaintiff demonstrates good faith when he
seeks review of a non-frivolous issue. Id.; Morris v. Ross, 664 F.2d 1032, 1033 (11th Cir.
1981). An issue “is frivolous if it is ‘without arguable merit either in law or fact.’” Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002). “Arguable means being capable of being
convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (quotation
marks and citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (“[A]
case is frivolous . . . when it appears the plaintiff ‘has little or no chance of success.’”)
(citations omitted). “In deciding whether an [in forma pauperis] appeal is frivolous, a
district court determines whether there is ‘a factual and legal basis, of constitutional
dimension, for the asserted wrong, however inartfully pleaded.’” Sun, 939 F.2d at 925
(citations omitted).

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Plaintiff filed this employment discrimination action against ACC, Plaintiff’s
former employer, and Defendants Carlton, Duck, Ward, Hale, Goolsby, Terry, Coleman,
Castleberry, and Stephens, Plaintiff’s former co-workers. Compl., ECF No. 1. Plaintiff
alleged that the Defendants discriminated against him based on his race and retaliated
against him when he complained of the racial discrimination. Id. at 4-6. The individual
Defendants filed a motion to dismiss on October 16, 2017, which the Court granted on
December 13, 2017, because relief under Title VII is not available against individual
employees. Order Granting Mot. to Dismiss 1-2, ECF No. 14.
ACC’s September 7, 2017, Answer asserted a counterclaim to enforce settlement.
Answer, ECF No. 8. ACC alleged that Plaintiff’s former counsel negotiated a settlement
of the case on Plaintiff’s behalf. Id. at 19. On November 17, 2017, the Clerk entered
default as to Plaintiff after Plaintiff failed to respond to ACC’s counterclaim. Plaintiff did
not seek to set aside default or otherwise respond to the Clerk’s entry of default and on
January 25, 2018, the Court granted ACC’s motion for default judgment. Order Granting
Mot. for Default J., ECF No. 15. Thereafter, on May 18, 2018, the Court granted ACC’s
motion to enforce judgment. Order Granting Mot. to Enforce J., ECF No. 25.
In his motion to proceed in forma pauperis on appeal, Plaintiff does not identify the
basis of his appeal or argue that the Court’s judgment was flawed. A review of the Court’s
past rulings, as outlined above, also reveals no arguable basis for appeal. The appeal is
frivolous and not brought in good faith. Consequently, Plaintiff’s motion for leave to
appeal in forma pauperis (ECF No. 33) is DENIED. If Plaintiff wishes to proceed with

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his appeal, he must pay the entire $505 appellate filing fee. Checks should be made payable
to “Clerk, U.S. District Court.”
SO ORDERED, this 27th day of August, 2018.

s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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