Lamb v. Hartford Life and Accident Insurance Company

Filing 44

ORDER finding as moot 40 Motion for Leave to Appeal in forma pauperis; granting 43 Motion for Leave to Proceed in forma pauperis. Ordered by Judge Hugh Lawson on 5/3/2012. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RUBEN LAMB,
Plaintiff,
Civil Action 5:10-CV-253 (HL)
v.
HARTFORD LIFE & ACCIDENT
INSURANCE COMPANY,
Defendant.
ORDER
Before the Court is Plaintiff Ruben Lamb’s Amended Motion to Proceed In
Forma Pauperis (“IFP”) on appeal. (Doc. 43.) For the reasons below, the Amended
Motion (Doc. 43) is granted. Plaintiff’s original Motion (Doc. 40) is deemed moot.
Motions to proceed IFP on appeal are governed by 28 U.S.C. § 1915(a) and
Federal Rule of Appellate Procedure 24. Section 1915(a) provides that
any 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
therefor, by a person who submits an affidavit that includes a
statement of all assets such prisoner possesses1 that the person is
unable to pay such fees or give security therefor.

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“Despite the statute’s use of the phrase ‘prisoner possesses,’ the affidavit
requirement applies to all persons requesting leave to proceed IFP.” Martinez v.
Kristi Kleaners, 364 F.3d 1305, 1306 n.2 (11th Cir. 2004).

28 U.S.C. § 1915(a). The statute forbids a plaintiff to proceed IFP “if the trial court
certifies in writing that [the action] is not taken in good faith.” 28 U.S.C. §
1915(a)(3).
Federal Rule of Appellate Procedure 24 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) shows … the party’s inability to pay or to give security for fees
and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
FED. R. APP. PROC. 24(a).
Thus, based on § 1915(a) and Rule 24, to grant a motion to proceed IFP on
appeal, the moving party must submit an affidavit that demonstrates (1) an inability
to pay, (2) entitlement to redress, (3) the issues on appeal, and (4) good faith.
a. Inability to Pay
When considering a motion to proceed IFP, “[t]he only determination to be
made by the court … is whether the statements in the affidavit satisfy the
requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th
Cir. 2004). To show poverty, the plaintiff need not show that he is “absolutely
destitute.” Id. Instead, the plaintiff must demonstrate that “because of his poverty,
he is unable to pay for the court fees and costs, and to support and provide
necessities for himself and his dependents.” Id.
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In this case, Plaintiff submitted his Amended Motion for Permission to Appeal
IFP along with a corresponding Affidavit. (Doc. 43.) In his Affidavit, he reports his
monthly income as $1,308.00 in Social Security disability benefits. His wife has not
earned any income in the last twelve months. Plaintiff estimates his monthly
expenses to be $1,140.00 and his wife’s expenses to be $1,483.00. This amounts
to a total of $2,623.00 spent monthly on mortgage payments, utilities, home
maintenance, food, clothing, and insurance, among other expenses. These
estimates from Plaintiff’s Affidavit demonstrate that his expenses are greater than
his income. This satisfies the requirement of demonstrating an inability to pay court
fees.
b. Entitlement of Redress
To proceed IFP on appeal, the moving party must also state an entitlement of
redress. In this case, Plaintiff’s Affidavit includes a signature block in which there
appears the sentence “I believe I am entitled to redress.” Plaintiff dated and signed
his Affidavit below this sentence. This is sufficient to demonstrate the fulfillment of
the second requirement to proceed IFP on appeal.
c. Issues on Appeal
The third condition for proceeding IFP requires the moving party to clearly
state the issues on appeal. Plaintiff’s Amended Motion to Proceed IFP (Doc. 43)
states two issues to be appealed: (1) whether Hartford’s decision to deny was
arbitrary and capricious; and (2) whether Hartford’s counterclaim for overpayment

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actually seeks appropriate equitable relief.2 This statement satisfies the third
requirement.
d. Good Faith
Finally, the fourth requirement to proceed IFP on appeal is good faith. The
test for whether an appeal is taken in good faith under section 1915(a) is whether
the litigant seeks appellate review of any issue that is not frivolous. Mixon v.
Corizon, Inc., 2012 WL 1136331 at *2 (S.D. Ala. Mar. 30, 2012). A claim is frivolous
if it is “without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir. 2001). In this case, the issues on appeal, as listed above, are not
frivolous.
In sum, Plaintiff Ruben Lamb has satisfied the four requirements for
proceeding IFP on appeal, and therefore, his Amended Motion (Doc. 43) is granted.
SO ORDERED, this 3rd day of May, 2012.

s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
ebr

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In the section on the Affidavit designated for listing the issues on appeal, Plaintiff
also states: “The appeal from a grant of summary judgment is subject to plenary
review; the Appellate Court applies the same legal standards that bound the District
Court.” (Doc. 43.) This statement addresses a legal standard as opposed to an
issue to be appealed, and thus, the Court did not include it as an issue.
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