MCGILL v. RIVERBEND CORRECTIONAL FACILITY et al

Filing 14

ORDER denying 13 Motion for Leave to Appeal in forma pauperis Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 05/18/2023 (elp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHNNY ANDREW MCGILL,

:
:
Plaintiff,
:
:
VS.
:
:
RIVERBEND CORRECTIONAL
:
FACILITY, et al.,
:
:
Defendants.
:
________________________________ :

NO. 5:22-CV-00418-MTT-CHW

ORDER
Presently pending before the Court is Plaintiff’s motion for leave to proceed in
forma pauperis on appeal (ECF No. 13), challenging the Court’s March 28, 2023 Order
and March 29, 2023 Judgment adopting the recommendation of the United States
Magistrate Judge to dismiss Plaintiff’s Complaint without prejudice (ECF Nos. 8, 9).
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

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

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 issue on appeal is
that the Court erred by failing to conclude that Defendants were deliberately indifferent to
Plaintiff’s serious medical needs. The Court has reviewed the record and finds that these
issues lack any arguable merit. 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. 13) 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
2

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 18th day of May, 2023.
S/ Marc T. Treadwell

MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

3