Pace v. Hurst Boilers & Welding Co.

Filing 56

ORDER denying 54 Motion for Leave to Appeal in forma pauperis. Ordered by Judge Hugh Lawson on 10/28/2011. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
WILLIE PACE,
Plaintiff,
Civil Action 7:10-CV-116 (HL)

v.
HURST BOILER & WELDING CO.,
Defendant.
ORDER

Currently before the Court is Plaintiff’s Motion for Leave to Appeal In Forma
Pauperis (Doc. 54). Plaintiff has filed a Notice of Appeal from the Court’s order (Doc.
51) granting Defendant’s Motion for Summary Judgment, and the Judgment (Doc.
52) entered in favor of Defendant.
Proceedings in forma pauperis are addressed in 28 U.S.C. § 1915(a), which
authorizes the commencement of, among other things, an appeal without
prepayment of fees. A court may allow a party to proceed on appeal without the
prepayment of fees if he “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
therefore. Such affidavit shall state the nature of the action, defense or appeal and
affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1).1 The
statute further provides, however, that an appeal Amay not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.@ 28

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“Despite the statute’s use of the phrase ‘prisoner possesses,’ the affidavit requirement
applies to all persons requesting leave to proceed IFP.” Martinez v. Kristi Kleaners, Inc.,
364 F.3d 1305, 1306 n. 2 (11th Cir. 2004).

U.S.C. § 1915(a)(3). Courts construing the Agood faith@ provision of ' 1915(a)(3)
have generally held that an appeal that is Anot being pursued in good faith@ is one
that is frivolous from an objective standpoint. In re Arnold, 166 Fed. Appx. 424 (11th
Cir. 2006); see also Ghee v. Retailers Nat. Bank, 271 Fed. Appx. 858, 859-60 (11th
Cir. 2008).
Assuming that Plaintiff is being forthright with the Court that his unemployment
benefits will end in early November, reducing his income to $1,208 per month with
expenses of $2,097 per month, he has shown that he is unable to pay for the court
fees and costs and also provide necessities for himself and his family. Nevertheless,
based on the record, the Court does not believe that, objectively speaking, Plaintiff
has presented a non-frivolous issue to be litigated on appeal. Accordingly, the Court
certifies that Plaintiff’s appeal is not taken in good faith. Plaintiff’s Motion for Leave to
Appeal In Forma Pauperis (Doc. 54) is denied. Plaintiff is advised to consult Rule
24(a)(5) of the Federal Rules of Appellate Procedure.
SO ORDERED, this the 28th day of October, 2011.

s/Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh

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