NOLLEY v. MCLAUGHLIN et al

Filing 185

ORDER denying 177 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 TILMAN E SELF, III on 6/5/2018. (chc)

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

CIVIL ACTION NO.
5:15-cv-00149-TES-CHW

GREGORY MCLAUGHLIN, et al.,
Defendants.
ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
______________________________________________________________________________
Presently pending before the Court is pro se Plaintiff Darnell Nolley’s motion for
leave to appeal in forma pauperis from the Court’s April 11, 2018 Order denying Plaintiff’s
motion for appointed counsel. [Docs. 167, 177]. For the following reasons, the Court
DENIES Plaintiff’s motion. [Doc. 177].
Pursuant to 28 U.S.C. § 1915(a)(1), a court may authorize an appeal of a civil action
or proceeding without prepayment of fees or security therefor if the putative appellant
has filed “an affidavit that includes a statement of all assets” and “state[s] the nature of
the . . . appeal and [the] affiant’s belief that the person is entitled to redress.” 1 If the trial
court certifies in writing that the appeal is not taken in good faith, however, such appeal

Federal Rule of Appellate Procedure 24 similarly requires a party seeking leave to appeal in forma pauperis
to file a motion and affidavit that establishes the party’s inability to pay fees and costs, the party’s belief
that he is entitled to redress, and a statement of the issues which the party intends to present on appeal.
Fed. R. App. P. 24(a).

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may not be taken in forma pauperis. 28 U.S.C. § 1915(a)(3). “‘[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.; see
also Morris v. Ross, 663 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) (per curiam) (quotation marks and citations
omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per curiam) (“[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).
Plaintiff states in his motion to proceed in forma pauperis that he ultimately “seeks
to petition the Supreme Court for a writ of certiorari concerning whether the denial of
appointment of counsel is immediately appealable” in his § 1983 case. [Doc. 177 at 2].
While Plaintiff correctly observes that a circuit split exists as to this issue, the Eleventh
Circuit has clearly held, in an en banc opinion, that “an order denying a motion for
appointed counsel in an in forma pauperis action brought pursuant to 42 U.S.C. § 1983”
is not immediately appealable under 28 U.S.C. § 1291. Holt v. Ford, 862 F.2d 850, 851 (11th
Cir. 1989) (en banc). But see, e.g., Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir.
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1986) (per curiam) (holding that ruling denying motion for appointed counsel in § 1983
case was appealable as a final order pursuant to § 1291); see also Welch v. Smith, 484 U.S.
903 (1987) (White, J. & Blackmun, J., dissenting from denial of certiorari on issue and
noting circuit split). Moreover, the Court’s review of its decision that Plaintiff is not
presently entitled to the appointment of counsel reveals no arguable issues of merit
therein. The appeal, therefore, is not brought in good faith. The Court accordingly
DENIES Plaintiff’s motion for leave to appeal in forma pauperis [Doc. 177].
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
Section 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 June, 2018.

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

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