KING v. LAWSON et al
ORDER denying 96 Motion to Appeal informa pauperis. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 9/11/2020. (chc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
EDDIE JAMES KING,
CIVIL ACTION NO.
Dr. Lawson, et al.,
Before the Court is King’s Motion to Appeal [Doc. 96]. King earlier filed a similar
Motion to Appeal [Doc. 81]. The Court denied it because the case was ongoing and King
did not meet the requirements for an interlocutory appeal. [Doc. 82]. Now that King has
settled with the only remaining defendant [Doc. 95], he may now appeal the Court’s
earlier grant of summary judgment to Defendant Lawson [Doc. 76]. Since King is free to
file a Notice of Appeal with the Clerk of Court pursuant to Federal Rule of Appellate
Procedure 3, the Court construes King’s current Motion to File Appeal [Doc. 96] as a
Request to Appeal in forma pauperis.
The Court previously granted King permission to proceed in forma pauperis in
this case. [Doc. 6]. Federal Rule of Appellate Procedure 24(a)(3) provides that “[a] party
who was permitted to proceed in forma pauperis in the district‐court action . . . may
proceed on appeal in forma pauperis without further authorization,” unless “a statute
provides otherwise.” There is a statute that provides otherwise. 28 U.S.C. § 1915(a)(2)
provides that a prisoner seeking to appeal a judgment in a civil action must “submit a
certified copy of the trust fund account statement (or institutional equivalent) for the
prisoner for the 6‐month period immediately preceding the filing of the . . . notice of
appeal.” King has not provided the required copy of his trust fund statement. This
omission alone allows the Court to deny any motion to appeal in forma pauperis.
Further, even if King had complied with the requirements of 28 U.S.C. §
1915(a)(2), his request to proceed in forma pauperis still fails. If the trial court certifies in
writing that the appeal is not taken in good faith, 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). A 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);
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.’”). “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.
King states that the reasons for his appeal are “apparent from the face of the
record.” [Doc. 96, p. 1]. Specifically, King restates his deliberate indifference arguments
that the Court has already considered and rejected when the Court granted summary
judgment to Defendant Lawson. [Doc. 96]; [Doc. 76]. As discussed in the Court’s order
granting Defendant Lawson summary judgment, King’s deliberate indifference claims
lack merit. [Doc. 76, pp. 3–6]. Accordingly, as the Court finds that King has little or no
chance of a successful appeal of the Court’s Order granting summary judgment to
Defendant Lawson, the Court DENIES Plaintiff’s Motion to Appeal [Doc. 96] to the
extent it is a Motion to Appeal In Forma Pauperis.
SO ORDERED, this 9th day of September, 2020.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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