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HANCOCK v. CAPE, 2:11-CV-00076-RWS. (2014)

Court: District Court, N.D. Georgia Number: infdco20140429b76 Visitors: 14
Filed: Apr. 28, 2014
Latest Update: Apr. 28, 2014
Summary: ORDER RICHARD W. STORY, District Judge. While incarcerated at the Hall County Detention Center ("HCDC") in Gainesville, Georgia, Plaintiff, since released, filed a 42 U.S.C. 1983 complaint (Doc. 1) and amended complaint (Doc. 7) claiming that Defendant had used excessive force against him at the HCDC. The Magistrate Judge recommended that Defendant's motion to dismiss the complaint (Doc. 37) be granted because Plaintiff had failed to exhaust the administrative remedies available to him befo
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ORDER

RICHARD W. STORY, District Judge.

While incarcerated at the Hall County Detention Center ("HCDC") in Gainesville, Georgia, Plaintiff, since released, filed a 42 U.S.C. § 1983 complaint (Doc. 1) and amended complaint (Doc. 7) claiming that Defendant had used excessive force against him at the HCDC. The Magistrate Judge recommended that Defendant's motion to dismiss the complaint (Doc. 37) be granted because Plaintiff had failed to exhaust the administrative remedies available to him before filing his complaint. (Doc. 45). Over Plaintiff's objections (Doc. 47), the Court adopted that recommendation. (Doc. 50). Plaintiff has filed a notice of appeal (Doc. 52) and now seeks leave to proceed in forma pauperis on appeal (Doc. 58).

"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)(3); see Ghee v. Retailers Nat'l Bank, 271 Fed Appx. 858, 859-60 (11th Cir. 2008) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962), for the proposition that a "party demonstrates good faith by seeking appellate review of any issue that is not frivolous when examined under an objective standard," and noting that a non-frivolous claim is one "capable of being convincingly argued," so that "where a claim is arguable, but ultimately will be unsuccessful, it should be allowed to proceed") (internal quotations omitted); DeSantis v. United Techs. Corp., 15 F.Supp.2d 1285, 1288-89 (M.D. Fla. 1998) (stating that good faith "must be judged by an objective, not a subjective, standard" and that an appellant "demonstrates good faith when he seeks appellate review of any issue that is not frivolous").

As set forth in the Magistrate Judge's Final Report and Recommendation (Doc. 45) and in this Court's Order adopting that recommendation (Doc. 50), Plaintiff has not presented a non-frivolous issue for appellate review regarding whether he properly exhausted his administrative remedies before seeking relief in this Court. Accordingly, the Court CERTIFIES under 28 U.S.C. § 1915(a)(3) that Plaintiff's appeal is not taken in good faith. Plaintiff's motion for leave to proceed on appeal in forma pauperis (Doc. 58) is DENIED. Because Plaintiff is no longer a prisoner, he is not required to participate in a partial payment plan for his appellate filing fee.

IT IS SO ORDERED.

Source:  Leagle

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