Booker v. Ervin et al

Filing 36

ORDER ADOPTING the 35 REPORT AND RECOMMENDATIONS as the Court's opinion. The Court grants Defendants' unopposed 32 Motion for Summary Judgment and dismisses all claims against Defendants Williams and Blakely in their entirety and Plai ntiff's claims for compensatory and punitive damages against Defendant Ervin. Plaintiff's excessive force claims for nominal damages against Defendant Ervin shall remain pending. The Court denies Plaintiff leave to appeal in forma pauperis as to his dismissed claims. Signed by Chief Judge J. Randal Hall on 03/29/2019. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

JARVIS DEMON BOOKER,
CIVIL ACTION NO.: 6:17-cv-15

Plaintiff,

OFFICER ERVIN; SGT. WILLIAMS; and
SGT BLAKELY,
Defendants.

ORDER

The Court has conducted an independent and de novo review of the entire record and

concurs with the Magistrate Judge's Report and Recommendation,(doc. 35). No party to this case
has filed an objection to the Report and Recommendation. Accordingly, the Court ADOPTS the
Magistrate Judge's Report and Recommendation as the opinion ofthe Court. The Court GRANTS
Defendants' unopposed Motion for Summary Judgment,(doc. 32), and DISMISSES all claims
against Defendants Williams and Blakely in their entirety and Plaintiffs claims for compensatory
and punitive damages against Defendant Ervin. Plaintiffs excessive force claims for nominal
damages against Defendant Ervin shall remain pending

The Court also DENIES Plaintiff leave to appeal in forma pauperis as to his dismissed
claims. Though Plaintiff has not yet filed a notice of appeal, the Court may address the matter at

this time. Fed. R. App. P. 24(a)(3)(trial court may certify that appeal is not taken in good faith
"before or after the notice of appeal is filed").
An appeal cannot be taken informa pauperis ifthe 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. County ofVolusia. 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, to 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). An informa pauperis action is frivolous and 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); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at
*1-2(S.D. Ga. Feb. 9,2009).

Based on the pleadings filed and the Magistrate Judge's Report and Recommendation, with
which the undersigned concurs, there are no non-frivolous issues to raise on appeal, and an appeal
would not be taken in good faith. Thus, the Court DENIES Plaintiff informa pauperis status on
appeal as to his dismissed claims.
SO ORDERED,this

day of March, 2019.

J. RA
UNITE

.SQUX

IIEF JUDGE

^Ates district court
DISTRICT OF GEORGIA