UNITED STATES OF AMERICA v. VEHICLE(S) et al

Filing 48

ORDER denying 47 Motion for Leave to Appeal in forma pauperis. (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

CIVIL ACTION NO.
5:15-cv-00123-TES

VEHICLE(S), et al.,
Defendants.
ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Before the Court is Plaintiff’s Motion for Leave to Proceed in Forma Pauperis [Doc.
47] on appeal. After reviewing the record, the Court DENIES Plaintiff’s motion. Plaintiff
seeks to appeal the Court’s denial of his Motion to Set Aside Default Judgment [Doc. 43].
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. Plaintiff’s application states that he is
currently incarcerated and has no source of income. [Doc. 47, at 1]. For purposes of this
motion only, the Court will assume without deciding that, based on these facts, Plaintiff
sufficiently pled his inability to pay the 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.; 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 success.’”) (citations
omitted). “In deciding whether an [in forma pauperis] appeal is frivolous, a district court
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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 Fed. R. App. P. 24(a)(1)(C), this Court’s independent review of the
issues addressed in the Order Denying Motion to Set Aside Default Judgment [Doc. 43]
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 decision to set aside a
default judgment is within the Court’s discretion and there is no arguable basis for
finding the Court abused its discretion when it denied Plaintiff’s Motion to Set Aside
Default Judgment. The appeal, therefore, is not brought in good faith. Plaintiff has raised
no issues with arguable merit. Consequently, the Court DENIES Plaintiff’s Motion for
Leave to Proceed in Forma Pauperis [Doc. 47].
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
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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 21st day of December, 2018.

S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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