FEDD v. ALMEDOM et al

Filing 56

ORDER DENYING 53 Motion to Appoint Counsel and DENYING 54 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/13/2016. (tlh)

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

LEVI ARTHUR FEDD,
Plaintiff,
VS.
Doctor ALMEDOM, et. al.
Defendants
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CIVIL No: 5:15-CV-0104-MTT

ORDER ON MOTIONS
Plaintiff Levi Arthur Fedd has filed notice of his intent to appeal this Court’s
dismissal of his pro se civil rights complaint for failure to exhaust. See Order, Feb. 12,
2016, ECF No. 48. Plaintiff has also filed both a Motion to Proceed in forma pauperis on
Appeal (ECF No. 53) and Motion for Appointment of Counsel (ECF No. 54).
I.

Motion to Proceed in forma pauperis on Appeal
Pursuant to 28 U.S.C. § 1915(a), the district court may authorize an appeal of a civil

action without prepayment of fees if the plaintiff submits an affidavit that includes a
statement of all assets and that states he is unable to pay or give security therefor. An
appeal, however, may not be taken in forma pauperis – regardless of the plaintiff’s
economic eligibility – if the trial court finds that 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).

While the

good-faith test under § 1915 does not require a preliminary showing of any particular
degree of merit, the examining court must at least be able to determine from the plaintiff’s
application whether the appeal involves legal points that are arguable on their merits.
DeSantis v. United Techs. Corp., 15 F. Supp. 2d 1285, 1289 (M.D. Fla. 1998) (citations
omitted). That is, the legal theories raised in the appeal must be “capable of being
convincingly argued.” Ghee v. Retailers Nat. Bank, 271 F. App’x 858, 859-60 (11th Cir.
2008) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)) (“[A]n IFP action is
frivolous, and thus not brought in good faith, if it is ‘without arguable merit either in law or
fact.’”). If they are not, the appeal is “indisputably meritless,” frivolous, and brought
without good faith. Id. at 859 (quoting Carroll 984 F.2d at 393).
In this case, Plaintiff’s in forma pauperis affidavit and prison trust account
statement (ECF No. 54) are sufficient to demonstrate his inability to prepay the appellate
filing fees.

Nonetheless, after a review of Plaintiff’s Motion to Proceed in forma

pauperis, Notice of Appeal, and the Order dismissing Plaintiff’s Complaint, the Court
finds no good faith basis for his appeal. Plaintiff’s appeal would be frivolous as to each
issue raised for the reasons stated and/or adopted in Court’s prior orders. The Court
therefore certifies, pursuant to § 1915(a)(3), that Plaintiff’s appeal is not taken in good
faith. Plaintiff’s Motion to Proceed in forma pauperis on appeal is DENIED.
Even if the Court assumed, arguendo, that this appeal could be taken in good faith,
Plaintiff is also barred from proceeding in forma pauperis on appeal by 28 U.S.C. §
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1915(g). This federal statute prohibits a prisoner from bringing a civil action or appeal in
federal court in forma pauperis
if [he] has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted . . . .
28 U.S.C. § 1915(g). This is known as the “three strikes provision.” Under § 1915(g), a
prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the
grounds that it is frivolous or malicious or fails to state a claim. Medberry v. Butler, 185
F.3d 1189, 1193 (11th Cir. 1999). If a prisoner incurs three strikes, his ability to proceed
in forma pauperis in federal court is greatly limited. See id.
A review of court records on the Federal Judiciary’s Public Access to Court
Electronic Records (“PACER”) database reveals that Plaintiff has filed multiple lawsuits in
federal court and that at least three of his complaints or appeals have been dismissed as
frivolous or malicious or for failure to state a claim prior to Plaintiff’s filing this Notice of
Appeal. See e.g, Fedd v. Singh, 1:16-cv-0024, ECF No. 5 (M.D. Ga. Feb. 24, 2016)
(dismissed for lack of jurisdiction); Fedd v. Almedom, 5:15-cv-0104 (M.D. Ga. Feb. 12,
2016) (failure to state a claim and failure to exhaust); Fedd v. Byrd, 7:10-CV-0127 (M.D.
Ga. June 3, 2011) (failure to prosecute, abuse of process). For this reason, and because
there is nothing alleged Plaintiff’s submissions to suggest that the three strikes bar cannot
be applied in this case, see Medberry, 185 at 1193, the undersigned finds that Plaintiff is
barred from proceeding on appeal without prepayment of the full $505.00 filing fee.

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II.

Motion for Appointment of Counsel
Because the Court finds his appeal frivolous, Plaintiff’s Motion for the

Appointment of Counsel on Appeal is also DENIED. The Court further finds that, even if
there was a non-frivolous issue for appeal, the essential facts and relevant legal doctrines in
this case are ascertainable by Plaintiff without the assistance of an attorney.

See

generally, Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987); Holt v. Ford, 682 F.2d
850, 853 (11th Cir. 1989). The appointment of counsel for the purpose of appeal is not
warranted despite Plaintiff’s incarceration, limited access to legal materials, and lack of
trial experience. See Motion, May 5, 2016, ECF No. 53, pp.1-2.
III.

Conclusion

For those reasons stated herein, Plaintiff’s Motion to Proceed in forma pauperis on
Appeal and Motion for Appointment of Counsel are both DENIED.
SO ORDERED this 13th day of June, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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