JOHNSON v. LEWIS et al

Filing 189

ORDER denying 188 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 6/1/2020. (TES)

Case 5:16-cv-00453-TES-MSH Document 189 Filed 06/01/20 Page 1 of 4

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

CIVIL ACTION NO.
5:16-CV-00453-TES-MSH

Dr. SHARON LEWIS, et al.,
Defendants.

ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

Presently pending before the Court is a motion for leave to appeal in forma
pauperis filed by pro se Plaintiff Ricky J. Johnson, a prisoner currently incarcerated at the
Coffee Correctional Facility in Nicholls, Georgia. [Doc. 188]. Plaintiff seeks to appeal
from the Court’s December 5, 2019 Order adopting the Report and Recommendation of
the United State Magistrate Judge, granting the motion for summary judgment filed by
Defendants Ferrell, Johnson, and Lewis, and granting in part and denying in part the
motion for summary judgment filed by Defendants Marler and Turner. [Doc. 178].
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

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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 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).
Although Plaintiff does not appear to have 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

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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independent review of the issues addressed in the United States Magistrate Judge’s
recommendation and the Court’s order adopting that recommendation 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).
Thus, the Court finds that the appeal is not brought in good faith since Plaintiff
has raised no issues with arguable merit. Accordingly, the Court DENIES Plaintiff’s
motion for leave to appeal in forma pauperis. [Doc. 188].
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.”

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Additionally, the Court DIRECTS the Clerk of Court to send a copy of this Order
to the custodian of the prison in which Plaintiff is incarcerated.
SO ORDERED, this 1st day of June, 2020.

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

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