SMITH v. HUMPHREY et al

Filing 206

ORDER DENYING 204 Motion for Leave to Appeal in forma pauperis. If Plaintiff wishes to proceed with his appeal, he must pay the entire $505.00 appellate filing fee. Because Plaintiff has stated that he cannot pay the $505.00 immediatel y, he must pay using the partial payment plan described under 28 U.S.C. § 1915(b). The Clerk of Court is DIRECTED to mail a copy of this Order to the custodian of the prison in which Plaintiff is incarcerated. Any further requests to proceed i n forma pauperis on appeal should be directed, on motion, to the United States Court of Appeals for the Eleventh Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 4/21/2014 (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

LESTER J. SMITH,

:
:
Plaintiff,
:
vs.
:
:
Warden CARL HUMPHREY, et. al.
:
:
Defendants.
:
_________________________________

CASE NO: 5:12-CV-0015-MTT-CWH

ORDER
Plaintiff Lester J. Smith has filed a motion to proceed in forma pauperis on appeal
from the Court’s February 28, 2014, Order (Doc. 199) granting summary judgment in
favor of Defendants. In the Court’s best judgment, an appeal from that Order cannot be
taken in good faith. See 28 U.S.C. § 1915(a)(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.”); Fed. R. App.
P. 24(a)(3) (“A party who was permitted to proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis . . . unless . . . the district court . .
. certifies that the appeal is not taken in good faith”).
Furthermore, as shown by Defendants (Doc. 205) and confirmed by a review of
court records on the U.S. District Web PACER Docket Report, Plaintiff has now
accumulated three “strikes” under section 28 U.C.S. § 1915(g): See Smith v. Hart,
5:12-cv-033 (S.D. Ga. 2012) (dismissing complaint), and Appeal No. 12-14201-E (11th
Cir. 2013) (dismissing appeal); Smith v. Humphrey, Appeal No. 12-13178-C (11th Cir.
2013) (dismissing appeal). Because of these dismissals, Plaintiff may not proceed in
forma pauperis on appeal unless he can show that he qualifies for the “imminent danger
of serious physical injury” exception of § 1915(g). Plaintiff’s Motion does not allege the
existence of any such danger.

For these reasons, Plaintiff’s Motion to Proceed in forma pauperis on appeal (Doc.
204) is DENIED. If Plaintiff wishes to proceed with his appeal, he must pay the entire
$505.00 appellate filing fee. Because Plaintiff has stated that he cannot pay the $505.00
immediately, he must pay using the partial payment plan described under 28 U.S.C.
§ 1915(b). Pursuant to § 1915(b), the prison account custodian where Plaintiff is
incarcerated shall cause to be remitted to the Clerk of this Court monthly payments of
20% of the preceding month’s income credited to Plaintiff’s account until the $505.00
appellate filing fee has been paid in full. Twenty percent of any deposits into the
prisoner’s account shall be withheld by the prison account custodian who, on a monthly
basis, shall forward the amount withheld from the prisoner’s account to the Clerk of this
Court each time the amount in the account exceeds $10.00 until the total filing fee of
$505.00 has been paid. Checks should be made payable to “Clerk, U.S. District Court.”
The Clerk of Court is DIRECTED to mail a copy of this Order to the custodian of the
prison in which Plaintiff is incarcerated.
Any further requests to proceed in forma pauperis on appeal should be directed,
on motion, to the United States Court of Appeals for the Eleventh Circuit, in accordance
with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED, this 21st day of April, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
jlr

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