LEWIS v. Reinhardt et al

Filing 11

ORDER denying 10 Motion for Leave to Appeal in forma pauperis. Ordered by Judge Hugh Lawson on 2/7/2012. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
ANTONIO BUTLER LEWIS,

:
:
Plaintiff
:
:
VS.
:
:
Judge BILL REINHARDT,
:
:
Defendants
:
_____________________________________

CIVIL ACTION NO: 7:11-CV-154-HL

ORDER
Currently before the Court is Plaintiff's Motion to Proceed in forma pauperis on Appeal.
[Doc. 10]. In the Order dismissing this action [Doc. 6], the Court found that it was required to
abstain from considering constitutional claims arising out of Plaintiff's ongoing criminal
prosecution. See Younger v. Harris, 401 U.S. 37 (1971) (requiring a district court abstain from
interfering with state criminal proceeding). Plaintiff has now filed a Notice of Appeal [Doc. 8] and
would like to proceed without prepayment of the filing fee.
Motions to appeal in forma pauperis are controlled by 28 U.S.C. § 1915 and Federal Rule
of Appellate Procedure 24. Section 1915 provides
(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 therefor, 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.
Federal Rule of Appellate Procedure 24 likewise 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.

....
(3) ... A party who was permitted to proceed in forma pauperis in the district-court
action . . . may proceed on appeal in forma pauperis without further authorization,
unless: (A) the district court-before or after the notice of appeal is filed-certifies that
the appeal is not taken in good faith . . . and states in writing its reasons for the
certification or finding . . . .
Therefore, before a party may proceed in an appeal without prepayment of the filing fee, he
must show both an inability to pay and that the appeal is brought in good faith. In this case, Plaintiff
has submitted an affidavit demonstrating an inability to pay. The Court, however, cannot find that
his appeal is taken in good faith.
Though Plaintiff claims, in his Notice of Appeal [Doc. 8], that the abstention doctrine should
not apply to his claims for damages, “[t]he Eleventh Circuit has . . . indicated its approval of
applying the Younger doctrine to § 1983 actions for money damages.” Boyd v. Boatright, 2011 WL
2535318 at * 2 (S.D. Ga. June 27, 2011) (citing Doby v. Strength, 758 F.2d 1405, 1406 (11th Cir.
1985) (per curiam) (ordering court to abstain from resolving merits claim until state conviction
reviewed by Georgia Court of Appeals); Gilbertson v. Albright, 381 F.3d 965, 979 n. 13 (9th Cir.
2004) (noting that almost every circuit has recognized that Younger principles apply “in some
fashion” to damages actions). In this case, Plaintiff’s Complaint challenges the constitutionality of
his pretrial proceedings and defense counsel’s failure to seek suppression of evidence which may
support his future conviction. Any determination of the civil claims arising from these alleged
errors in the state court could substantially interfere with, and potentially undermine, the ongoing
state criminal proceeding.
More important, however, is the fact that Plaintiff cannot properly bring a §1983 action for
money damages against the named Defendants. All of the Defendants named in Plaintiff’s
Complaint – the state court judge, prosecutor, public defender, and county jail1 – are persons or
entities which are not subject to a suit for damages under §1983. It is well-known that judges are
absolutely immune in a § 1983 suit for damages for judicial acts done within the jurisdiction of the

1

Though Plaintiff identifies the “Tift County Jail (Sheriff’s Office)” as a Defendant, he fails to
make any allegations against the Sheriff, his office, or the jail in the Complaint.

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court. Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Stump v. Sparkman,
435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213,
18 L.Ed.2d 288 (1967); Wahl v. McIver, 773 F.2d 1169 (11th Cir.1985). Prosecutors also enjoy
immunity in a § 1983 suit for damages based upon actions that are intimately associated with the
judicial phase of the criminal process. Imbler v. Pachtman, 424 U.S. 409, 428, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976). Public defenders are not state actors within the meaning of § 1983, Polk
County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 70 L.Ed.2d 509 (1981), and county jails are
not entities which may be sued under § 1983. See Jones v. Irwin County Jail, 2009 WL 5108233 *
2 (M.D. Ga. Dec. 17, 2009); Ansley v. Franks, 2010 WL 4007626 *2 n.2 (S.D. Ga. Aug. 30, 2010).
Any money-damage claims against the named Defendants would fail outright. Thus, by
default, Plaintiff’s only available remedy would have been some sort of injunctive relief, and those
claims would clearly be subject to the Younger doctrine. The Court’s dismissal of Plaintiff’s
Complaint was therefore appropriate, and any appeal therefrom would not be taken in good faith.
See Ramey v. Georgia, 2010 WL 786806 at 8 (M.D. Ga. March 05, 2010) (dismissing under
Younger where damages were not available against named defendant)
For all of these reasons, Plaintiff's Motion to Proceed in forma pauperis on Appeal [Doc. 10]
is DENIED, and the Court CERTIFIES that any appeal from the Court's Order of November 29,
2011, is not brought in good faith.
If Plaintiff wishes to proceed with his appeal, he must pay the entire $ 455.00 appellate filing
fee. Because Plaintiff has stated that he cannot pay the $ 455.00 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 incarcerated 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 until the
$ 455.00 appellate filing fee has been paid in full. Twenty percent of any deposits into the prisoner’s
account shall be withheld by the prison account custodian who, on a monthly basis, shall forward
the amount withheld from the prisoner’s account to the Clerk of this Court each time the amount in
the account exceeds $10.00 until the total filing fee of $455.00 has been paid. Checks should be

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made payable to “Clerk, U.S. District Court.” The Clerk of Court is DIRECTED to mail a copy
of this Order to the custodian of the prison in which Plaintiff is incarcerated.
Any further requests to proceed in forma pauperis on appeal should be directed, on motion,
to the United States Court of Appeals for the Eleventh Circuit, in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.

SO ORDERED AND DIRECTED this 7th day of February, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
jlr

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