COUCH v TAYLOR

Filing 105

ORDER DENYING 98 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/30/2016. (tlh)

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

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Plaintiff
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VS.
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Officer JERMAINE BRITTON,
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Defendant
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_________________________________:

5:15-CV-26 (MTT)
ORDER

Plaintiff Gary Couch, a prisoner at Georgia State Prison, has filed a notice of appeal
(ECF No. 93) and motion to proceed in forma pauperis on appeal (ECF No. 98) from the
entry of judgment for the Defendant, Jermaine Britton, pursuant to a jury verdict in
Britton’s favor in this civil rights action filed pursuant to 42 U.S.C. § 1983.
A court may authorize an appeal of a civil action without prepayment of fees if the
prisoner submits an affidavit that includes a statement of all assets and that states the
prisoner is unable to pay or give security therefor.

See 28 U.S.C. § 1915(a)(1).

Nevertheless, this Court may deny in forma pauperis status if the Court determines the
appeal is not 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.”). “Good faith” means that an issue exists on appeal that is not frivolous under an
objective standard. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

An

appeal is considered frivolous when it is brought “without arguable merit either in law or

fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
In his notice of appeal, Plaintiff does not state the specific issues he wishes to
appeal. In this case, the Plaintiff contended that the Defendant used excessive force when
the Defendant entered his cell to clear a toilet the Plaintiff had clogged, allegedly in protest
of some action or inaction by prison authorities. The Defendant contended that the
Plaintiff instead beat his head against a wall because of his frustration with whatever
authorities had done or failed to do. Further, the Defendant was prepared to adduce
evidence that the Plaintiff regularly beat his head against the wall whenever he did not get
what he wanted. Notwithstanding the absence of an objection by the Plaintiff, the Court
ruled at the pretrial conference that this propensity evidence was not admissible. At trial,
the Plaintiff called fellow inmate Anthony Dasher who on direct examination by the
Plaintiff testified that, in fact, the Plaintiff had beat his head against the wall. Dasher
further testified that the Plaintiff “always [beats his head against a wall] when he can’t have
his way.” The jury delivered a defense verdict after deliberating for 21 minutes. The
Plaintiff raised no objections during the trial. In short, this case involved the resolution of
a simple factual issue, and the evidence, including the testimony of the Plaintiff’s witness,
overwhelmingly favored the Defendant’s version of events. There are no legitimate
grounds for appeal. To allow Plaintiff to appeal would be a waste of judicial resources.
The Court therefore certifies, pursuant to section 1915(a)(3), that Plaintiff’s appeal is not
taken in good faith. Accordingly, Plaintiff’s motion to proceed in forma pauperis on
2

appeal is hereby DENIED.1
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
section1915(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.” The Clerk of Court is DIRECTED to send 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 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 30th day of September, 2016.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

1

As the Court determines that Plaintiff’s appeal is not taken in good faith, the Court need not
consider whether Plaintiff is unable to pre-pay the appellate filing fees.

3