Hampton v. Peeples et al

Filing 54

ORDER denying 48 Motion for Leave to Appeal in forma pauperis; denying 49 Motion for Certificate of Appealability. Signed by Judge J. Randal Hall on 02/24/2016. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

NORMAN HAMPTON, III,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-104

v.

MATT PEEPLES,
Defendant.

ORDER

Presently before the Court are Plaintiffs Motion for Leave to Appeal in Forma Pauperis,

(doc. 48), and Motion for a Certificate of Appealability, (doc. 49). Plaintiff seeks to appeal this

Court's January 12, 2016, Order, (doc. 46), wherein the Court adopted the Magistrate Judge's

Report and Recommendation and dismissed some of Plaintiffs claims, as well as some
Defendants. For the reasons set forth below, the Court DENIES Plaintiffs Motions.

As for Plaintiffs request to proceed informa pauperis on appeal, an appeal cannot be

taken informa pauperis if the trial court certifies that the appeal is not taken in good faith. 28
U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an

objective standard. Busch v. Ctv. of Volusia. 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party

does not proceed in good faith when he seeks to advance a frivolous claim or argument. See
Coppedge v. United States. 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it

appears the factual allegations are clearly baseless or the legal theories are indisputably meritless.
Neitzke v. Williams. 490 U.S. 319, 327 (1989); Carroll v. Gross. 984 F.2d 392, 393 (11th Cir.

1993). Or, stated another way, an in forma pauperis action is frivolous and, thus, notbrought 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); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009

WL 307872, at *l-2 (S.D. Ga. Feb. 9, 2009).

Based on the lengthy analyses of Plaintiffs claims contained in the Magistrate Judge's
Report and Recommendation, (doc. 19), and the Court's Order adopting the same, (doc. 46),
there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good
faith. Thus, the Court DENIES Plaintiffs request to proceed informa pauperis on appeal.

As for Plaintiffs request for a certificate of appealability, to the extent he makes this

request pursuant to 28 U.S.C. § 2253(c)(1), the request is due to be denied as moot as that

statutory provision only applies to habeas proceedings. To the extent that Plaintiff is requesting
a certification of interlocutory appeal, that request is also denied. The authority to certify an

interlocutory appeal is intended to be used sparingly and only in exceptional cases where a

speedy appeal would avoid protracted litigation. White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994).
To be granted permission for an interlocutory appeal under 28 U.S.C. § 1292(b), the party

wishing to appeal must demonstrate that there is a "controlling question of law as to which there
is substantial ground for difference of opinion" and that resolution of issue will "materially
advance the ultimate termination of the litigation."

In this context, "a question is controlling only if it may contribute to the determination, at

an early stage, of a wide spectrum of cases." Fed. Deposit Ins. Corp. v. First Nat'l Bank of
Waukesha, Wis., 604 F. Supp. 616, 620 (E.D. Wis. 1985). A party does not establish that there

is substantial ground for difference of opinion by merely claiming that the district court's
conclusion was incorrect. Wausau Business Ins. Co. v. Turner Const. Co., 151 F. Supp. 2d 488,

491 (S.D.N.Y. 2001). Further, the mere lack of authority as to a disputed issue "does not

necessarily establish a substantial ground for difference of opinion" warranting interlocutory
review. Fed. Deposit Ins. Corp., 604 F. Supp. at 620 (citing United States ex rel. Hollander v.

Clay, 420 F. Supp. 853, 859 (D.D.C. 1976)). Finally, whether an interlocutory appeal will
materially advance the termination of the case turns on whether the appeal "promises to advance
the time for trial or shorten the time required for trial." In re Oxford Health Plans, Inc., 182
F.R.D. 51, 53 (S.D.N.Y. 1998) (quotation omitted). "In simple terms, when deciding whether to

allow an interlocutory appeal, the district court should consider the probability that its decision
was in error and the time and expense that may be saved by allowing the appeal." In re Sci.Atlanta, Inc. Sec. Litig., No. CIV.A.1:01-CV-1950RW, 2003 WL 25740734, at *1 (N.D. Ga.

Apr. 15, 2003).

Even if these requirements are satisfied, and the District Court issues a

certification of interlocutory appeal, the Court of Appeals has discretion to refuse to allow the
appeal. 28 U.S.C. § 1292(b).

When entering its January 12, 2016, Order, the Court did not opine that any "controlling

question of law as to which there is a substantial ground for difference of opinion" existed.
Indeed, this case does not present any such question. Further, allowing an interlocutory appeal

would delay instead of advance the ultimate determination of Plaintiff s claims. For all of these
reasons, the Court DENIES Plaintiffs Motion for a Certificate of Appealability.

SO ORDERED, this <^T

day of February, 2016.

L^
HONORABLE J. RANDAL HALL
UNITED/STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF GEORGIA