NOLLEY v. NELSON et al
ORDER denying 156 Motion for Leave to Appeal in forma pauperis. The Clerk of Court is DIRECTED to send a copy of this Order to the custodian of the prison in which Plaintiff is incarcerated. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 12/5/2017 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CYNTHIA NELSON, et al.,
___________________________ _____ :
Plaintiff Darnell Nolley has moved to appeal in forma pauperis. Mot. & Aff. for
Leave to Appeal In Forma Pauperis, ECF No. 156. After reviewing the record, the Court
enters the following Order.
Plaintiff seeks to appeal the judgment in favor of Defendants entered on September
22, 2017. See Notice of App., ECF No. 154. Applications to appeal in forma pauperis
are governed by 28 U.S.C. § 1915 and Fed. R. App. P. 24. Under 28 U.S.C. § 1915,
(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
(A) shows . . . the party’s inability to pay or to give security for fees
(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. Here, Plaintiff has submitted a renewed
affidavit for leave to proceed in forma pauperis, but he did not submit an updated certified
copy of his trust fund account statement because he states that the business office at the
prison has been unresponsive to his request for a statement. See Mot. & Aff. for Leave to
Appeal In Forma Pauperis, ECF No. 156. Regardless, Plaintiff’s affidavit, along with his
previous filings, demonstrate that he is unable to prepay the appellate filing fee.
Second, 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).
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).
In this action, this Court granted summary judgment to Defendants on Plaintiff’s
due process claim.1 Order, Sept. 21, 2017, ECF No. 142. Although Plaintiff has not
submitted a statement of the issues he intends to appeal, as is required by Fed. R. App. P.
24(a)(1)(C), this Court’s independent review of the issues addressed in the September 21,
2017, Order demonstrates that Plaintiff’s appeal is frivolous. In particular, Defendants
were entitled to summary judgment because the undisputed facts demonstrated that
Plaintiff’s placement in administrative segregation did not deprive him of a protected
liberty interest. See Turner v. Warden, GDCP, 650 F. App’x 695, 700-01 (11th Cir. 2016)
(per curiam). Moreover, to the extent that Plaintiff seeks to challenge on appeal the
Court’s resolution of Plaintiff’s non-dispositive motions, a review of the orders resolving
those motions does not reveal any non-frivolous issue for appeal. The appeal, therefore, is
not brought in good faith.
Consequently, Plaintiff’s application to appeal in forma
pauperis 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
In an earlier order, a number of Plaintiff’s other claims were dismissed, leaving only his
due process claims. See Order, June 24, 2016, ECF No. 65. Plaintiff was previously
denied leave to appeal that order in forma pauperis. See Order 5-6, Aug. 16, 2016, ECF
§ 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.” 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 5th day of December, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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