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)

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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

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