Finvest Roxboro, LLC v. Jackson

Filing 14

OPINION AND ORDER denying Defendant Harold Jackson's Application to Appeal In Forma Pauperis 13 . Signed by Judge William S. Duffey, Jr on 1/4/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FINVEST FOXBORO, LLC, d/b/a
Phipps Place Apartments,
Plaintiff,
v.

1:16-cv-03811-WSD

HAROLD JACKSON,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant Harold Jackson’s
(“Defendant”) Application to Appeal In Forma Pauperis [13] (“Application”).1
I.

BACKGROUND
On October 13, 2016, Defendant filed his Notice of Removal [2], seeking to

remove to this Court a state dispossessory action brought against him by Plaintiff
Finvest Foxboro, LLC (“Plaintiff”).
Defendant’s Notice of Removal contended that “the Respondent’s service of
process is Unconstitutional with respect to the ‘Due Process Clauses’ 14th
1

The Application is titled “Application to Proceed in District Court Without
Prepaying Fees or Costs.” Based on the timing of the filing, the Court construes it
as an Application to Appeal In Forma Pauperis.

Amendment with defective service.” (Notice of Removal ¶ 1). Defendant claimed
that “[t]he Respondent has failed to state claim that grounds for relief may be
granted,” (id. ¶ 2), and “[t]he judicial proceedings against the petitioner occurring
in violation of the 15 USC 1692,” (id. ¶ 3). Thus, it appears that Defendant alleged
that this Court has subject matter jurisdiction over this case on the basis of a
federal question.
On October 18, 2016, the Magistrate Judge issued his Report and
Recommendation (“R&R”). The R&R recommended the Court remand this action
to the Magistrate Court of Fulton County, because the Court lacks jurisdiction over
this action.
On October 31, 2016, Defendant filed his Objections to the R&R.
Defendant claimed he has a right to “declaratory relief,” and that Plaintiff violated
15 U.S.C. § 1692(f)(6)(A) and the “Fair Debt Collection[] [Practices] Act.” (Obj.
at 1-2).
On December 15, 2016, the Court issued its Order [8] adopting the
Magistrate Judge’s R&R and remanding this action to the Magistrate Court of
Fulton County. The Court agreed with the Magistrate Judge that dismissal was
required because (i) Defendant did not assert any federal claims and (ii) Defendant
did not allege that the Court has diversity jurisdiction. ([8] at 3-4).
2

On December 22, 2016, Defendant filed his Application. Defendant did not
submit with his Application a statement of good faith issues to be appealed.
II.

DISCUSSION
A.

Legal Standard

Applications to appeal in forma pauperis are governed by 28 U.S.C. § 1915
and Rule 24 of the Federal Rules of Appellate Procedure. Section 1915 provides,
in pertinent part:
(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[2] 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.
28 U.S.C. § 1915(a)(1), (3).

2

The word “prisoner” is a typographical error, and the affidavit requirement
applies to all individuals seeking to proceed in forma pauperis. Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004).

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Rule 24 of the Federal Rules of Appellate Procedure provides, in pertinent
part:
(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 in the detail prescribed by Form 4 of the Appendix of
Forms 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.
Fed. R. App. P. 24(a)(1).
Two requirements must be satisfied for a party to prosecute an appeal
in forma pauperis. First, the party must show an inability to pay. Second, the
appeal must be brought in good faith. An appeal may not be taken in forma
pauperis if the trial court certifies, either before or after the notice of appeal is
filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R.
App. P. 24(a)(3)(A).
A party demonstrates good faith by seeking appellate review of any issue
that is not frivolous when judged under an objective standard. See
Coppedge v. United States, 369 U.S. 438, 445 (1962). An issue is frivolous when

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it appears that the legal theories are “indisputably meritless.” See
Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392,
393 (11th Cir. 1993). An in forma pauperis action is frivolous, and thus not
brought in good faith, if it is “without arguable merit either in law or fact.”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); Bilal v. Driver, 251 F.3d
1346, 1349 (11th Cir. 2001). “Arguable means capable of being convincingly
argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (per curiam)
(quoting Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (per curiam)
(internal quotation marks omitted)). Where a claim is arguable, but ultimately will
be unsuccessful, it should be allowed to proceed. See Cofield v. Ala. Pub. Serv.
Comm’n, 936 F.2d 512, 515 (11th Cir. 1991).
The individual seeking to appeal in forma pauperis must submit a statement
of good faith issues to be appealed. Fed. R. App. P. 24(a)(1)(C) (“The party must
attach an affidavit that . . . states the issues that the party intends to present on
appeal.”). A statement of issues to be appealed enables the court to determine
whether the appeal would be frivolous or not taken in good faith. See
Howard v. Huntington Nat’l Bank, No. 2:09-cv-251, 2010 WL 4642913, at *3
(S.D. Ohio Nov. 4, 2010) (“The affidavit . . . does not include a statement of the
issues he intends to present on appeal, the omission of which is fatal to a Rule
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24(a) motion.”); Martin v. Gulf States Utils. Co., 221 F. Supp. 757, 760 (W.D. La.
1963) (“The statement of points . . . will . . . enable us to more intelligently
determine whether or not the proposed appeal is frivolous, or not made in good
faith.” (citations omitted)).
B.

Analysis

Defendant did not submit his statement of good faith issues to be appealed,
and his Application therefore is required to be denied. Fed. R. App. P. 24(a)(1)(C);
Howard, 2010 WL 4642913, at *3. Even if Defendant submitted the required
statement, his appeal is not taken in good faith. Defendant failed to establish
federal question or diversity jurisdiction to remove this action to federal court.
Because Defendant’s appeal lacks an arguable basis in law, the Court finds that the
appeal is not taken in good faith. Defendant’s Application is required to be denied.
See 28 U.S.C. § 1915(e)(2).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Harold Jackson’s Application

to Appeal In Forma Pauperis [13] is DENIED.

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SO ORDERED this 4th day of January, 2017.

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