Filed: Sep. 07, 2018
Latest Update: Sep. 07, 2018
Summary: ORDER TILMAN E. SELF, III , District Judge . Presently pending before the Court is pro se Plaintiff Lester J. Smith's motion for leave to appeal in forma pauperis [Doc. 112] from the Court's July 24, 2018 Order adopting the Magistrate Judge's Report and Recommendation and dismissing the above-captioned action. [Doc. 108]. For the following reasons, the Court DENIES Plaintiff's motion to appeal in forma pauperis. Pursuant to 28 U.S.C. 1915(a)(1), a court may authorize an appeal of
Summary: ORDER TILMAN E. SELF, III , District Judge . Presently pending before the Court is pro se Plaintiff Lester J. Smith's motion for leave to appeal in forma pauperis [Doc. 112] from the Court's July 24, 2018 Order adopting the Magistrate Judge's Report and Recommendation and dismissing the above-captioned action. [Doc. 108]. For the following reasons, the Court DENIES Plaintiff's motion to appeal in forma pauperis. Pursuant to 28 U.S.C. 1915(a)(1), a court may authorize an appeal of ..
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ORDER
TILMAN E. SELF, III, District Judge.
Presently pending before the Court is pro se Plaintiff Lester J. Smith's motion for leave to appeal in forma pauperis [Doc. 112] from the Court's July 24, 2018 Order adopting the Magistrate Judge's Report and Recommendation and dismissing the above-captioned action. [Doc. 108]. For the following reasons, the Court DENIES Plaintiff's motion to appeal in forma pauperis.
Pursuant to 28 U.S.C. § 1915(a)(1), a court may authorize an appeal of a civil action or proceeding without prepayment of fees or security therefor if the putative appellant has filed "an affidavit that includes a statement of all assets" and "state[s] the nature of the . . . appeal and [the] affiant's belief that the person is entitled to redress."1 If the trial court certifies in writing that the appeal is not taken in good faith, however, such appeal may not be taken in forma pauperis. 28 U.S.C. § 1915(a)(3).2 "`[G]ood faith' . . . must be judged by an objective standard." Coppedge v. United States, 369 U.S. 438, 445 (1962). The plaintiff demonstrates good faith when he seeks review of a non-frivolous issue. Id.; see also Morris v. Ross, 663 F.2d 1032, 1033 (11th Cir. 1981). An issue "is frivolous if it is `without arguable merit either in law or fact.'" Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002). "Arguable means being capable of being convincingly argued." Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (per curiam) (quotation marks and citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per curiam) ("[A] case is frivolous . . . when it appears the plaintiff `has little or no chance of success.'") (citations omitted). "In deciding whether an [in forma pauperis] appeal is frivolous, a district court determines whether there is `a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.'" Sun, 939 F.2d at 925 (citations omitted).
Plaintiff states in his notice of appeal that the Court erred "in applying the continuing violation doctrine in this case." [Doc. 111, p. 2]. The Court has reviewed the applicable orders and the record in this case and finds that Plaintiff's appeal is frivolous. The appeal, therefore, is not brought in good faith. Plaintiff has raised no issues with arguable merit.
Consequently, Plaintiff's application to appeal in forma pauperis [Doc. 112] is DENIED. If Plaintiff wishes to proceed with his appeal, he must pay the entire $505 appellate filing fee. Because Plaintiff has stated that he cannot pay the fee immediately, he must pay using the partial payment plan described under 28 U.S.C. § 1915(b). Pursuant to section 1915(b), the prison account custodian where Plaintiff is confined shall cause to be remitted to the Clerk of this Court monthly payments of 20% of the preceding month's income credited to Plaintiff's account (to the extent the account balance exceeds $10) until the $505 appellate filing fee has been paid in full. Checks should be made payable to "Clerk, U.S. District Court." The Clerk of Court is DIRECTED to send a copy of this Order to the custodian of the prison in which Plaintiff is incarcerated.
SO ORDERED.