CLAYTON v. MITCHELL et al

Filing 275

ORDER DENYING 269 and 272 Motion for Leave to Appeal in forma pauperis. If Plaintiff wishes to proceed with his appeal, he must pay the entire $605 appellate filing fee. Because Plaintiff has stated th at he cannot 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 US DISTRICT JUDGE MARC T TREADWELL on 9/24/2024. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
EARNEST BARNARD CLAYTON,

:
:
Plaintiff,
:
:
V.
:
:
CHIEF COUNSELOR MITCHELL, :
et al.,
:
:
Defendants.
:
_________________________________ :

NO. 5:21-cv-00335-MTT-AGH

ORDER
Pro se Plaintiff Earnest Barnard Clayton has filed a motion for leave to appeal in
forma pauperis. Mot. for Leave to Appeal In Forma Pauperis, ECF Nos. 269 & 272.
Plaintiff seeks to appeal the judgment in favor of Defendants entered on June 21, 2024.
Order Adopting R. & R., ECF No. 256; J., ECF No. 261. After reviewing the record, the
Court enters the following Order.
Applications to appeal in forma pauperis are governed by 28 U.S.C. § 1915 and
Fed. R. App. P. 24. Under 28 U.S.C. § 1915,
(a)(1) [A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security therefore, by a person
who submits an affidavit that includes a statement of all assets such prisoner
possesses that the person is unable to pay such fees or give security therefor.
Such affidavit shall state the nature of the action, defense or appeal and
affiant’s belief that the person is entitled to redress.
...
(3) An appeal may not be taken in forma pauperis if the trial court certifies
in writing that it is not taken in good faith.

Similarly, Fed. R. App. P. 24(a) provides:
(1) [A] party to a district-court action who desires to appeal in forma pauperis must
file a motion in the district court. The party must attach an affidavit that:
(A) shows . . . the party’s inability to pay or to give security for fees
and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
(2) If the district court denies the motion, it must state its reasons in writing.
Thus, the Court must make two determinations when faced with an application to
proceed in forma pauperis. First, it must determine whether the plaintiff is financially able
to pay the filing fee required for an appeal. Here, Plaintiff has submitted an updated motion
for leave to appeal in forma pauperis, which demonstrates that he is unable to prepay the
appellate filing fee. Mot. for Leave to Appeal In Forma Pauperis, ECF No. 272.
Second, the Court must determine if the plaintiff has satisfied the good faith
requirement. “‘[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. 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)
(citations omitted). “Arguable means capable of being convincingly argued.” Sun v.
Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (quotation marks and citations omitted);
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (“[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

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is ‘a factual and legal basis, of constitutional dimension, for the asserted wrong, however
inartfully pleaded.’” Sun, 939 F.2d at 925 (citations omitted).
In this action, Plaintiff filed a complaint raising multiple potential claims. Compl.,
ECF No. 1. On preliminary review of the complaint, Plaintiff was granted leave to proceed
in forma pauperis and allowed to proceed on an excessive force claim, a retaliation claim,
and a conditions-of-confinement claim against two defendants. R. & R., ECF No. 8. It
was recommended that Plaintiff’s remaining claims be dismissed without prejudice for
failure to state a claim. Id. Plaintiff did not object to the recommendation, and it was
adopted. Order, ECF No. 18.
Thereafter, Plaintiff was also permitted to proceed on a due process claim and a
retaliation claim in a separate case against the same two defendants, and that case was
consolidated with this one. Order, ECF No. 19. Additionally, on preliminary review of an
amended complaint, Plaintiff was permitted to proceed on claims against four new
defendants. R. & R., ECF No. 106. It was recommended that other claims be dismissed,
and that recommendation was also adopted. Id.; Order, ECF No. 131.
Following a series of motions and responses, all of Plaintiff’s claims were dismissed
for failure to exhaust his administrative remedies except for a claim alleging denial of due
process against two defendants. R. & R., ECF No. 164; Order, ECF No. 167. Ultimately,
those two defendants were granted summary judgment with regard to that claim. R. & R.,
ECF No. 217; Order, ECF No. 256. At the conclusion of the case, costs were taxed against
Plaintiff. Taxation of Costs, ECF No. 268.

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Plaintiff has filed a notice of appeal and two motions for leave to proceed in forma
pauperis on appeal. Notice of Appeal, ECF No. 266; Mot. for Leave to Appeal In Forma
Pauperis, ECF Nos. 269 & 272. Plaintiff does not identify any issues for appeal in these
filings. See generally id. Thus, Plaintiff has not identified a non-frivolous issue for appeal.
Moreover, this Court’s independent review of the record demonstrates that Plaintiff’s
appeal is frivolous. The appeal, therefore, is not brought in good faith. Consequently,
Plaintiff’s application to appeal in forma pauperis is DENIED.
If Plaintiff wishes to proceed with his appeal, he must pay the entire $605 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 § 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 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 24th day of September, 2024.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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