GIBSON v. SMITH et al

Filing 141

ORDER denying 139 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 02/07/2024 (elp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BARRY LYNN GIBSON,

:
:
Plaintiff,
:
VS.
:
:
WARDEN AIMEE SMITH, et al.,
:
:
Defendants.
:
________________________________ :

NO. 5:21-CV-00328-TES-CHW

ORDER
Presently pending before the Court is Plaintiff’s motion for leave to proceed in
forma pauperis (ECF No. 139) to appeal the Court’s January 4, 2024 Order and January 5,
2024 Judgment adopting the recommendation of the United States Magistrate Judge and
granting Defendants’ motions for summary judgment (ECF Nos. 134, 135). 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 be taken
in forma pauperis. 28 U.S.C. § 1915(a)(3). “‘[G]ood faith’ . . . must be judged by an

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).
1

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).
Although Plaintiff does not appear to have included a statement of the issues he
intends to appeal in his motion, as is required under Fed. R. App. P. 24(a)(1)(C), this
Court’s independent review of the issues addressed in the Magistrate Judge’s Report and
Recommendation (ECF No. 131) and any subsequent filings demonstrates that 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). Plaintiff has raised no issues with arguable merit,
and therefore the appeal is not brought in good faith. Plaintiff’s motion for leave to appeal
in forma pauperis (ECF No. 139) is accordingly DENIED.
2

If Plaintiff wishes to proceed with his appeal, he must pay the entire $605.00
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 $605.00 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 February 2024.
s/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT

3