GREER v. NEEL et al

Filing 23

ORDER denying 21 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 4/10/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
EUGENE WILLIAM GREER,

:
:
Plaintiff,
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VS.
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BRIAN NEEL, et al.,
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Defendants.
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________________________________ :

NO. 5:17-CV-259-MTT-CHW

ORDER
Presently pending before the Court is pro se Plaintiff Eugene William Greer’s
motion for leave to appeal in forma pauperis from the Court’s December 19, 2017 Order
denying Plaintiff’s motion for a preliminary injunction and dismissing his Eighth
Amendment failure to protect and failure to provide medical treatment claims without
prejudice. For the following reasons, the Court DENIES Plaintiff’s motion (ECF No. 21).
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 may not

1

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).

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 review of
the issues addressed in this case 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). The appeal, therefore, is not brought in good faith. Plaintiff has raised no issues
with arguable merit. Plaintiff’s motion for leave to appeal in forma pauperis (ECF No. 21)
is accordingly DENIED.
2

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 10th day of April, 2018.

S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT JUDGE

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