Whitby v. Chertoff

Filing 99

ORDER granting 94 Motion for Leave to Proceed in forma pauperis; granting 95 Motion for Leave to Appeal in forma pauperis. Ordered by Judge Hugh Lawson on 3/8/2011. (nbp)

Whitby v. Napolitano

Doc. 99

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION ADONIS WHITBY, : : Plaintiff, : : : : v. : : JANET NAPOLITANO, Secretary of U.S. : Department of Homeland Security, : : Defendant. : __________________________________ :

Civil Action No. 5:08-cv-242 (HL)

ORDER

This matter is before the Court on the Plaintiff's Motion for Permission to Appeal In Forma Pauperis ("IFP") (Docs. 94 and 95). For the following reasons, the motion is granted. The Court permitted the Plaintiff to proceed in the district court IFP. In its summary judgment order, the Court found that the Defendant demonstrated that there were no genuine issues of material fact for trial. Judgment was then entered in favor of the Defendant on all of the Plaintiff's claims. The Plaintiff now seeks to appeal the Court's summary judgment order and final judgment order without having to pay costs. Federal Rule of Appellate

Procedure 24(c) provides that a party who was allowed to proceed with his case in the district court IFP may pursue an appeal IFP without further authorization unless "the district court . . . certifies that the appeal is not taken in good faith or finds that

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the party is not otherwise entitled to proceed in forma pauperis . . . ." Fed. R. App. P. 24(c)(3)(A).1 The Plaintiff's inability to pay the costs of his appeal is apparent from his affidavit and his appeal is not frivolous or otherwise not taken in good faith; accordingly, the Plaintiff "may proceed on appeal in forma pauperis without further authorization." SO ORDERED, this the 8 th day of March, 2011. s/ Hugh Lawson HUGH LAWSON, SENIOR JUDGE

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If the Plaintiff had not received prior authorization to proceed IFP in the district court, then to proceed on appeal IFP the Plaintiff would have to file a motion and attach an affidavit showing his inability to pay fees and costs of his appeal, his entitlement to redress, and stating the issues that he intends to present on appeal. Fed. R. App. P. 24(a)(1). 2

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