MCILWAIN v. BURNSIDE et al

Filing 96

ORDER DENYING 95 Motion for Leave to Appeal in forma pauperis. If Plaintiff wishes to proceed with his appeal, he must pay the entire $505 appellate filing fee. Because Plaintiff has stated that he canno t pay the fee immediately, he must pay using the partial payment plan described under 28 U.S.C. § 1915(b). The Clerk of Court is DIRECTED to send a copy of this Order to the custodian of the prison in which Plaintiff is incarcerated. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 1/11/2023. (kat)

Case 5:17-cv-00363-MTT-MSH Document 96 Filed 01/11/23 Page 1 of 3

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

:
:
Plaintiff,
:
VS.
:
:
Dr. EDWARD BURNSIDE, et al.,
:
:
Defendant.
:
________________________________ :

NO. 5:17-CV-00363-MTT-MSH

ORDER
Presently pending before the Court is Plaintiff’s motion for leave to proceed in
forma pauperis on appeal (ECF No. 95), challenging the Court’s November 4, 2022 Order
and Judgment adopting the recommendation of the United States Magistrate Judge to grant
Defendants’ motion for summary judgment and to deny Plaintiff’s motion for summary
judgment (ECF Nos. 90, 91).
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

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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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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).
Plaintiff’s appeal in this case is not taken in good faith because he does not seek
review of a non-frivolous issue. As best as the Court can tell, Plaintiff’s issues on appeal
are that the Court erred by failing to (1) require Defendants to answer Plaintiff’s discovery
requests; (2) appoint counsel to assist Plaintiff; and (3) acknowledge that Defendants
“made it impossible” for Plaintiff to pursue his case by stripping him of his belongings,
denying him access to the law library, and refusing to reply to Plaintiff’s requests to the
business office. Mot. Proceed IFP 1, ECF No. 95. The Court has reviewed the record and
finds that these issues lack any arguable merit. Most strikingly, while Plaintiff now
contends he did not have adequate discovery to prosecute his claims, Plaintiff previously
failed to identify which specific documents or pictures he needed, describe his witness or
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the testimony the witness would give, or follow up when the Court denied his motion to
compel for failing to attach a statement certifying that he had attempted to confer with
Defendants. Report & Recommendation 3 n.2, ECF No. 86. The Court also notes that
Plaintiff failed to object to the recommendation despite being given additional time to do
so. See 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1 (party’s failure to object in accordance with
§ 636(b)(1) generally waives right to appeal on the basis of “unobjected-to factual and legal
conclusions” where party was notified of time period for objecting and consequences for
failing to object). Because Plaintiff has raised no issues with arguable merit, his appeal is
frivolous and not taken in good faith. Carroll, 984 F.2d at 393. Plaintiff’s motion for leave
to appeal in forma pauperis (ECF No. 95) is therefore 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 11th day of January, 2023.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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