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JOHNSON v. NELSON, 5:14-CV-3-CAR-CHW. (2016)

Court: District Court, M.D. Georgia Number: infdco20160113834 Visitors: 22
Filed: Jan. 12, 2016
Latest Update: Jan. 12, 2016
Summary: ORDER C. ASHLEY ROYAL , District Judge . Plaintiff Eric O'Brien Johnson has filed a motion to proceed in forma pauperis ("IFP") on appeal (ECF No. 62) from the Court's September 29, 2015 Order adopting the United States Magistrate Judge's recommendation and granting Defendants' motion for summary judgment (ECF No. 56). On November 20, 2015, the Court ordered Plaintiff to supplement his IFP motion to explain his issues on appeal so that the Court could determine whether the appeal involve
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ORDER

Plaintiff Eric O'Brien Johnson has filed a motion to proceed in forma pauperis ("IFP") on appeal (ECF No. 62) from the Court's September 29, 2015 Order adopting the United States Magistrate Judge's recommendation and granting Defendants' motion for summary judgment (ECF No. 56). On November 20, 2015, the Court ordered Plaintiff to supplement his IFP motion to explain his issues on appeal so that the Court could determine whether the appeal involved legal points arguable on their merits and was therefore taken in good faith. Plaintiff was given twenty-one (21) days to respond to the Court's Order and responded on December 7, 2015 (ECF No. 64).

Upon reviewing Plaintiff's response and the record, the Court finds that Plaintiff does not have sufficient funds to pay the entire appellate filing fee at this time, but there are no issues of arguable merit for appeal. In his supplemental filing, Plaintiff merely reiterates arguments already made in this case and summarily concludes that an appeal is warranted because the Court reached "incorrect conclusions of law." (Supp. to Mot. Appeal IFP 4, ECF No. 64.) As discussed in the Magistrate Judge's Report and Recommendation, however, Plaintiff was not constitutionally entitled to any notice or hearing prior to a change in his security classification, and there was no evidence in the record to show that Defendants failed to provide him the required process during his continued confinement in the Tier II program. Thus, for the reasons contained in the Magistrate Judge's Report and Recommendation, the Court finds that Plaintiff's appeal is not taken in good faith under 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962) (defining "good faith" as requiring that an issue exists on appeal that is not frivolous under an objective standard); Ghee v. Retailers Nat'l Bank, 271 F. App'x 858, 859 (11th Cir. 2008) (per curiam) (holding that an issue is frivolous where the legal theories are indisputably meritless). Plaintiff's motion for leave to appeal IFP (ECF No. 62) is accordingly DENIED.

If the Plaintiff wishes to proceed with his appeal, he must pay the entire $505.00 appellate filing fee. Any further requests to proceed IFP on appeal should be directed, on motion, to the United States Court of Appeals for the Eleventh Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.

Source:  Leagle

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