SMITH v. DOZIER et al

Filing 117

ORDER denying 112 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 9/7/2018. (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LESTER J. SMITH,
Plaintiff,
CIVIL ACTION NO.
5:17-cv-00298-TES-TQL

v.
GREG DOZIER, et al.,
Defendants.

ORDER
______________________________________________________________________________
Presently pending before the Court is pro se Plaintiff Lester J. Smith’s motion for
leave to appeal in forma pauperis [Doc. 112] from the Court’s July 24, 2018 Order adopting
the Magistrate Judge’s Report and Recommendation and dismissing the above-captioned
action. [Doc. 108]. For the following reasons, the Court DENIES Plaintiff’s motion to
appeal in forma pauperis.
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

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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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). 2 “‘[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

The Court notes that the “three strikes” provision of the Prison Litigation Reform Act (“PLRA”) also
prohibits a prisoner from “appeal[ing] a judgment in a civil action or proceeding” in forma pauperis

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if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Although it appears Plaintiff has had more than three of his cases or appeals dismissed
on the statutorily-enumerated grounds prior to filing his notice of appeal in this case, Plaintiff states in his
notice of appeal that he is in imminent danger of serious physical injury due to Defendants’ failure to treat
his Hepatitis C. [Doc. 111, p. 2]. Plaintiff alleges he is presently suffering from “severe pain in the liver area,
sores throughout his body, stomach pain, vomit[]ing, fatigue, [and] deterioration of bodily organs.” [Id.].
These allegations are sufficient to show that Plaintiff is presently in imminent danger of serious physical
injury for purposes of § 1915(g). See, e.g., Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (allegations
that prison officials refused to treat inmate’s hepatitis and HIV infections, causing painful symptoms,
sufficient to overcome § 1915(g) bar).

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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).
Plaintiff states in his notice of appeal that the Court erred “in applying the
continuing violation doctrine in this case.” [Doc. 111, p. 2]. The Court has reviewed the
applicable orders and the record in this case and finds that Plaintiff’s appeal is frivolous.
The appeal, therefore, is not brought in good faith. Plaintiff has raised no issues with
arguable merit.
Consequently, Plaintiff’s application to appeal in forma pauperis [Doc. 112] 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 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.” 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 7th day of September, 2018.

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