CANTY v. PRIOR et al

Filing 11

ORDER DENYING 10 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 1/29/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARTIN CANTY,
Plaintiff,
v.
WILLIAM A PRIOR. JR, et al.,
Defendants.
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No. 5:17-cv-00237-MTT-CHW

ORDER
Plaintiff Martin Canty has filed a motion for leave to proceed in forma pauperis on
appeal (ECF No. 10) from the Court’s November 3, 2017, Order (ECF. No. 5) dismissing
his case as barred by the Rooker-Feldman doctrine and for failure to state a claim.
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:

and

(A) shows . . . the party’s inability to pay or to give security for fees
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 and certified trust fund
account in this case 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.; 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 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).
Upon reviewing Plaintiff’s motion and the record, the Court finds that Plaintiff has

no arguable basis for an appeal. Plaintiff seeks appeal because he “was denied a full and
fair hearing and the right to be free of invidious discrimination.” Motion to Appeal in
Forma Pauperis 1, ECF No. 10. Plaintiff raised the same argument in his complaint, and
alleges that the state court judges that presided over his state court habeas action conspired
with those that represented the state, his appellate attorney, and others to deny his petition.
According to Plaintiff, the conspiracy resulted in the state court wrongly deciding various
evidentiary and case management issues as well as erroneously denying his habeas petition.
As discussed in the Order of dismissal, Plaintiff is a state court loser complaining of injuries
caused by state-court judgements, and he seeks review of the rulings and procedures
employed by the state court as applied to him. His claims are, therefore, barred by the
Rooker-Feldman doctrine. Furthermore, the defendant judges and assistant state attorney
generals are entitled to immunity. Plaintiff’s remaining claims against his appellate
attorney and the court reporter are also barred by Georgia 2-year statute of limitations.
Consequently, Plaintiff’s appeal is without arguable merit, and Plaintiff’s application to
appeal in forma pauperis (ECF No. 10) 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
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 29th day of January, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT