DANIELS v. MCLAUGHLIN et al

Filing 86

ORDER DENYING 84 & 85 Motions for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/21/2017. (tlh)

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

DERRICK JOHN RAYMOND DANIELS,

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Plaintiff,
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v.
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WARDEN, GREGORY MCLAUGHLIN, et )
al.,
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Defendants.
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CIVIL ACTION NO. 5:14-CV-442 (MTT)

ORDER
Plaintiff Derrick John Raymond Daniels has filed two applications to appeal in
forma pauperis. Docs. 84, 85. After reviewing the record, the Court enters the following
Order.
Daniels seeks to appeal the judgment in favor of the Defendants entered on June
5, 2017. Doc. 80. 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) 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. Daniels submitted an updated certified
copy of his trust fund account statement in this Court on July 11, 2016 (Doc. 85-1) that
shows he is unable to pay the $505 appellate 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. 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)
(citations omitted). “Arguable means 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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Although Daniels has not submitted a statement of the issues he intends to appeal,
as is required under Fed. R. App. P. 24(a)(1)(C), this Court’s independent review of the
issues addressed in the March 8, 2017 Report and Recommendation (Doc. 75), Daniels’s
March 23, 2017 Objection to that Recommendation (Doc. 76), and the Court’s Order
adopting the Recommendation (Doc. 79) demonstrates that Daniels’s appeal is frivolous.
See Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999) (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 in the ruling sought to be appealed”
instead of requiring a statement from the plaintiff), overruled on other grounds by Lee v.
Clinton, 209 F.3d 1025 (7th Cir. 2000). The appeal, therefore, is not brought in good
faith. Daniels has raised no issues with arguable merit.
Consequently, Daniels’s applications to appeal in forma pauperis (Docs. 84, 85)
are DENIED.
If Daniels wishes to proceed with his appeal, he must pay the entire $505 appellate
filing fee. Because Daniels 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 §
1915(b), the prison account custodian where Daniels 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 Daniels’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.” The Clerk of Court is DIRECTED to send a copy of this
Order to the custodian of the prison in which Daniels is incarcerated.

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SO ORDERED, this 21st day of August, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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