JORDAN v. STATE OF GEORGIA et al
Filing
77
ORDER denying 75 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE HUGH LAWSON on 12/4/2020. (aks)
Case 7:18-cv-00061-HL-TQL Document 77 Filed 12/04/20 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
CARTARVIS JORDAN,
Plaintiff,
Civil Action No. 7:18-CV-61-HL-TQL
v.
STATE OF GEORIA, et al.
Defendants.
ORDER ON PLAINTIFF’S APPLICATION TO APPEAL IN FORMA PAUPERIS
Plaintiff Cartarvis Jordan has filed a Notice of Appeal. ECF No. 71. An Order
Adopting the United States Magistrate Judge’s Recommendation was filed on August 19,
2019, which granted summary judgment in favor of the Defendants.
ECF No. 53.
Subsequently, Judgment was entered in favor of the Defendants. ECF No. 54. Plaintiff
filed a Motion for Reconsideration (ECF No. 55) that was denied. ECF No. 70. Plaintiff
seeks to appeal the denial of his Motion for Reconsideration and the judgment in favor of
the Defendants. ECF No. 71. Plaintiff also submitted an application to appeal in forma
pauperis. ECF No. 75. After reviewing the record, the Court enters the following Order
as to Plaintiff’s Motion for Leave to Appeal in forma pauperis.
Applications to appeal in forma pauperis are governed by 28 U.S.C. § 1915 and
Fed. R. App. P. 24. 28 U.S.C. § 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
Case 7:18-cv-00061-HL-TQL Document 77 Filed 12/04/20 Page 2 of 4
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.
Similarly, Fed. R. App. P. 24(a) 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.
(2) If the district court denies the motion, it must state its reasons in writing.
The Court, therefore, must make two determinations when faced with an application
to proceed in forma pauperis. First, it must determine whether the plaintiff is financially
able to pay the filing fee required for an appeal. Plaintiff did submit an updated certified
copy of his trust fund account statement that indicates that he is unable to pay the $505
appellate filing fee. ECF No. 75.
Next, the Court must determine if the plaintiff has satisfied the good faith
requirement. “‘[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. 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)
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Case 7:18-cv-00061-HL-TQL Document 77 Filed 12/04/20 Page 3 of 4
(citations omitted). “Arguable means capable of being convincingly argued.” Sun v.
Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (quotation marks and citations omitted);
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (“[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 . . . for the asserted wrong, however inartfully pleaded.’” Sun,
939 F.2d at 925 (citations omitted).
A statement of the issues an Appellant intends to appeal is required under Fed. R.
App. P. 24(a)(1)(C). Plaintiff has submitted a brief and general statement that echoes his
complaints in his Motion for Reconsideration (ECF No. 55). ECF No. 75 at 1. This
Court has conducted an independent review of the issues addressed in the United State
Magistrate Judge’s Order and Recommendations (ECF No. 49), Plaintiff’s Objections to
that Recommendation (ECF No. 50), the Court’s Order Adopting the United States
Magistrate Judge’s Recommendation (ECF No. 53), Plaintiff’s Motion for Reconsideration
(ECF No. 55), and the Court’s Order denying the Motion for Reconsideration (ECF No.
70) and concludes that Plaintiff’s appeal is frivolous. See Hyche v. Christensen, 170 F.3d
769, 771 (7th Cir. 1999), overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th
Cir. 2000) (explaining that the arguments to be advanced on appeal are often obvious and
decisions regarding good faith can be made by looking at the “reasoning of the ruling
sought to be appealed” instead of requiring a statement from the plaintiff). The appeal,
therefore, is not brought in good faith. Plaintiff has raised no issues with arguable merit.
Consequently, Plaintiff’s application to appeal in forma pauperis is DENIED.
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If Plaintiff wishes to proceed with his appeal, he must pay the entire $505 appellate
filing fee. Because Plaintiff has averred 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
section1915(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 and DIRECTED, this 4th day of December, 2020.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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