JACKSON v. MCLAUGHLIN et al

Filing 53

ORDER DENYING 45 Motion for Leave to Appeal in forma pauperis; DENYING 46 Motion from the Obligation to Pay the Docketng and Filing Fee. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/25/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMON DEMETRIUS JACKSON,

:
:
Plaintiff,
:
:
vs.
:
:
WARDEN, GREGORY MCLAUGHLIN, :
et al.,
:
:
Defendants.
:
___________________________ _____:

CIVIL ACTION NO. 5:16-CV-142 (MTT)

ORDER
Plaintiff has filed two applications to appeal in forma pauperis. (Docs. 45, 46).
After reviewing the record, the Court enters the following Order.
Plaintiff seeks to appeal the judgement in favor of the Defendants entered on
October 28, 2016. (Doc. 30). 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 did not submit an updated
certified copy of his trust fund account statement. But, the certified trust fund account
statement that Plaintiff filed in this Court on July 11, 2016 (Doc. 23) indicates that he is
unable to pay the $505 appellate 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. 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). “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 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 June 29, 2016 (Doc. 19) and October 26, 2016 (Doc. 29) Orders

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demonstrates that Plaintiff’s appeal is frivolous. Additionally, these issues are reviewed
in detail in the Court’s May 25, 2017 Order (Doc. 52) denying Plaintiff’s fourth motion to
alter or amend judgment (Doc. 49). 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 appeal, therefore, is
not brought in good faith. Plaintiff has raised no issues with arguable merit.
Consequently, Plaintiff’s applications to appeal in forma pauperis (Docs. 45, 46)
are 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
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
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 25th day of May, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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