GREER v. NEEL et al

Filing 25

ORDER DENYING 24 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/18/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

EUGENE WILLIAM GREER,

Plaintiff,
v.
BRIAN NEEL, et al.,

Defendants.

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CIVIL ACTION NO. 5:17-CV-259 (MTT)

ORDER
Plaintiff Eugene William Greer has filed an application to appeal in forma
pauperis. Doc. 24. After reviewing the record, the Court enters the following Order.
The Plaintiff seeks, for the second time, to appeal the Court’s December 19,
2017 Order denying the Plaintiff’s motion for a preliminary injunction and dismissing
without prejudice his Eighth Amendment failure to protect and failure to provide medical
treatment claims.1 Doc. 14. 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.
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(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.
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On March 5, 2018, the Plaintiff filed an application to appeal IFP the Court’s December 19 Order. Doc.
21. The Court denied that motion on April 10, 2018. Doc. 23.

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. Based on the affidavit and attached
trust account statement, it appears the Plaintiff is unable to pay the $505 appellate filing
fee. Docs. 24; 24-1.
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

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the asserted wrong, however inartfully pleaded.’” Sun, 939 F.2d at 925 (citations
omitted).
Although the 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 this case demonstrates that the 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. The Plaintiff has raised no issues with arguable merit.
Consequently, the Plaintiff’s motion for leave to appeal in forma pauperis (Doc. 24) is
DENIED.
If the Plaintiff wishes to proceed with his appeal, he must pay the entire $505
appellate filing fee. Because the 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 the 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 the 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
the Plaintiff is incarcerated.

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SO ORDERED, this 18th day of July, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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