JOHNSON v. HOLT et al

Filing 87

ORDER DENYING 86 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/18/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TROY DELMAR JOHNSON,
Plaintiff,
v.
WARDEN AHMED HOLT, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:14-CV-380 (MTT)

ORDER
Plaintiff has filed a notice of appeal as to the Court’s Order granting summary
judgment against him and now, pursuant to the Eleventh Circuit’s direction, moves in
this Court to proceed on appeal in forma pauperis. Docs. 83; 85 at 2; 86. Applications
to appeal in forma pauperis are governed by 28 U.S.C. § 1915 and Federal Rule of
Appellate Procedure 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.
(2) A prisoner seeking to bring a civil action or appeal a
judgment in a civil action or proceeding without prepayment
of fees or security therefor, in addition to filing the affidavit
filed under paragraph (1), shall submit a certified copy of the
trust fund account statement (or institutional equivalent) for
the prisoner for the 6-month period immediately preceding
the filing of the complaint or notice of appeal, obtained from
the appropriate official of each prison at which the prisoner is
or was confined.
(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 Federal Rule of Appellate Procedure 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) 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.
(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 has submitted neither an up-todate affidavit under 28 U.S.C. § 1915(a)(1) nor a certified trust fund account statement
covering the six-month period preceding his appeal under 28 U.S.C. § 1915(a)(2),
rather, he refers the Court back to his original IFP application. Doc. 86 at 1; see also
Doc. 2-1. Plaintiff’s motion to proceed IFP on appeal must be denied on these grounds.
But even if Plaintiff had filed the financial affidavit and trust fund account
statement and further assuming that they show that Plaintiff is unable to pay the filing
fee, the Court would still deny the application because the appeal would not be taken in
good faith.
“‘[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

-2 

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).
Although Plaintiff has not submitted a statement of the issues he intends to
appeal, as is required under Federal Rule of Appellate Procedure 24(a)(1)(C), this
Court’s independent review of the issues addressed in the Court’s order granting
summary judgment in adoption of the Magistrate Judge’s Report and Recommendation
(see Doc. 78 adopting Doc. 73) demonstrates that Plaintiff’s appeal is frivolous. See
Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999), overruled on other grounds by
Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000) (explaining that the arguments to be
advanced on appeal are often obvious and decisions regarding good faith can be made
by looking at the “reasoning of the ruling sought to be appealed” instead of requiring a
statement from the plaintiff). The appeal, therefore, is not brought in good faith. Plaintiff
has raised no issues with arguable merit. Consequently, Plaintiff’s application to appeal
in forma pauperis (Doc. 86) is DENIED.
If Plaintiff wishes to proceed with his appeal, he must pay the entire $505
appellate filing fee. Because Plaintiff has stated that he cannot pay the fee immediately,
he must pay using the partial payment plan described under 28 U.S.C. § 1915(b).
Pursuant to 28 U.S.C. § 1915(b), the prison account custodian where Plaintiff is
confined 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 (to the extent the
account balance exceeds $10) until the $505 appellate filing fee has been paid in full.
Checks should be made payable to “Clerk, U.S. District Court.”

-3 

The Clerk of Court is DIRECTED to send a copy of this Order to the custodian of
the prison in which Plaintiff is incarcerated.
SO ORDERED, this 18th day of May, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

-4