CARTER v. ALLEN et al

Filing 37

ORDER directing Plaintiff to supplement 36 MOTION for Leave to Appeal in forma pauperis and to explain his issues on appeal by no later than 21 days from the date of this Order. Ordered by US DISTRICT JUDGE HUGH LAWSON on 11/4/2015. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

DEMETRUIS DELFON CARTER,

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Plaintiff,
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VS.
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Warden MARTY ALLEN, et al.,
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Defendants.
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__________________________________

CIVIL No: 7:15-CV-13-HL-TQL

ORDER
Plaintiff Demetruis Delfon Carter has filed a motion to proceed in forma pauperis
(“IFP”) on appeal (ECF No. 36) from the Court’s September 10, 2015 Order adopting the
United States Magistrate Judge’s recommendation and dismissing certain of Plaintiff’s
claims against Defendants (ECF No. 25). 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 be taken in forma pauperis. 28 U.S.C. §
1915(a)(3); see also Fed. R. App. P. 24(a)(3) (“A party who was permitted to proceed in

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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).

forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis . . .
unless . . . the district court . . . certifies that the appeal is not taken in good faith[.]”).
“Good faith” means that an issue exists on appeal that is not frivolous under an objective
standard. See Coppedge v. United States, 369 U.S. 438, 445 (1962). “An issue is
frivolous when it appears that ‘the legal theories are indisputably meritless.’” Ghee v.
Retailers Nat’l Bank, 271 F. App’x 858, 859 (11th Cir. 2008) (per curiam) (quoting Carroll
v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)).
While the good-faith test under Section 1915 does not require a preliminary
showing of any particular degree of merit, the examining court must at least be able to
determine from the IFP application whether the appeal involves legal points arguable on
their merits. DeSantis v. United Techs. Corp., 15 F. Supp. 2d 1285, 1289 (M.D. Fla.
1998) (citations omitted) (adopting U.S. Magistrate Judge’s recommendation’s findings as
to IFP application). In this case, the Court cannot determine whether Plaintiff’s appeal
meets the good faith requirements of § 1915 because Plaintiff submitted only information
regarding his finances and no information regarding his reasons for appealing. The Court
therefore ORDERS Plaintiff to supplement his motion to explain his issues on appeal no
later than TWENTY-ONE (21) days from the date of this Order.
Failure to timely comply with this Order may result in denial of Plaintiff’s Motion.
SO ORDERED this 4th day of November, 2015.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE

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