NEWTON v. UNITED STATES OF AMERICA

Filing 22

ORDER denying 20 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 11/18/2021. (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DONALD R. NEWTON, JR.,
Petitioner,
v.
UNITED STATES OF AMERICA,

CIVIL ACTION NO.
5:21-cv-00254-TES-CHW

Respondent.

ORDER DENYING MOTION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS

Before the Court is Petitioner Donald R. Newton Jr.’s Motion for Leave to Appeal
In Forma Pauperis [Doc. 20]. Petitioner seeks to appeal the Court’s Order [Doc. 13]
denying his Motion for Return of Property [Doc. 1] and the subsequent Judgment [Doc.
14] dismissing his case.
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.”
28 U.S.C. § 1915(a)(1). If the trial court certifies in writing that the appeal is not taken in
good faith, however, such appeal must 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.
The Court has reviewed the statement of issues detailed in Petitioner’s Motion
and finds his appeal to be frivolous. Petitioner states that he seeks to appeal because
“the [C]ourt denied [his] motion due to time restraints when they mailed papers to an
outside address when [he] was incarcerated.” [Doc. 20, p. 1]. He also states that “the
funds that were seized [do] not match the amount that was reported[.]” [Id.]. Neither
statement raises an issue with arguable merit, and therefore, Plaintiff’s appeal cannot be
said to have been brought in good faith. Accordingly, the Court DENIES Plaintiff’s
Motion for Leave to Appeal In Forma Pauperis [Doc. 20].

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If Petitioner wishes to proceed with his appeal, he must pay the entire $505
appellate filing fee. Because Petitioner 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 Petitioner is
confined shall cause to be remitted to the Clerk of this Court monthly payments of 20%
of the preceding month’s income credits to Petitioner’s account (to the extent the
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
Petitioner is incarcerated.
SO ORDERED, this 18th day of November, 2021.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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