PHILLIPS v. DEAL et al

Filing 74

ORDER DENYING 73 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 MARC THOMAS TREADWELL on 7/12/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES MANUEL PHILLIPS, JR.,
Plaintiff,
v.
NATHAN DEAL, et al.,
Defendants.

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Case No: 5:15-cv-249 (MTT-CHW)

ORDER
Plaintiff has filed a notice of appeal as to the Court’s dismissal of his complaint
and now, pursuant to the Eleventh Circuit’s direction, moves in this Court to proceed on
appeal in forma pauperis. Docs. 70; 72; 73. Applications to appeal in forma pauperis
are governed by 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 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.
(2) A prisoner seeking to bring a civil action or appeal a
judgment in a civil action or proceeding without prepayment
of fees or security therefor, in addition to filing the affidavit
filed under paragraph (1), shall submit a certified copy of the
trust fund account statement (or institutional equivalent) for
the prisoner for the 6-month period immediately preceding
the filing of the complaint or notice of appeal, obtained from
the appropriate official of each prison at which the prisoner is
or was confined.
(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 Federal Rule of Appellate Procedure 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 properly filled out this District’s
IFP form, affirming under penalty of perjury that he has no money and has had none for
eighteen years. Id. However, he did not submit a certified copy of his trust fund
account statement. It appears that Plaintiff failed to attached the trust account
statement in reliance on the language of the IFP form, which requires “a certificate from
prison authorities if [the prisoner has] money in a prison account[].” Doc. 73 at 2
(emphasis by Plaintiff). In light of the Court’s experience with the prison’s trust account
procedures, the Court is skeptical that Plaintiff has absolutely nothing, not one penny, in
his account. Moreover, despite the perhaps misleading language in the Court’s IFP
form, the mere fact that the Plaintiff has absolutely nothing in his trust account does not
appear to relieve him of his statutory obligation to submit a certified copy of his trust
account statement. On balance, however, the Court is inclined to find that Plaintiff has
met the requirement of proving that he cannot pay the filing fee; however, the Court
need not make this determination because the Court finds that Plaintiff’s appeal is not
taken in good faith.
“‘[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
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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 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 an affidavit that states the issues he intends
to appeal, as is required under Federal Rule of Appellate Procedure 24(a)(1)(C), his
notice of appeal asserts several reasons for his appeal. Doc. 70. These concerns have
been thoroughly addressed either by the Magistrate Judge or by this Court. See Docs.
40; 43; 58; 64; 67; 68. Plaintiff has raised no issues with arguable merit. The Court has
also reviewed its Orders for other potential grounds for appeal. Cf. 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 Court’s review of its Orders demonstrates that Plaintiff’s appeal
is frivolous. The appeal, therefore, is not brought in good faith. Consequently, Plaintiff’s
application to appeal in forma pauperis (Doc. 73) 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 28 U.S.C. § 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
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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 12th day of July, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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