United States District Court, M.D. Georgia, Macon Division
ASHLEY ROYAL, SENIOR UNITED STATES DISTRICT JUDGE.
pending before the Court is the pro se motion for
leave to appeal in forma pauperis of Waseem Daker
(“Movant”) (ECF No. 120), seeking to appeal the
Court's May 10, 2017 order denying his motion to
intervene (ECF No. 114). Movant has also filed a motion for
reconsideration of the order denying intervention (ECF No.
117). For the following reasons, the Court DENIES both of
Motion for Reconsideration
first seeks reconsideration of the non-case-dispositive order
of the Magistrate Judge denying his motion to
intervene. Pursuant to Federal Rule of Civil
When a pretrial matter not dispositive of a party's claim
or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a written
order stating the decision. A party may serve and file
objections to the order within 14 days after being served
with a copy. . . . The district judge in the case must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.
Movant's “motion for reconsideration” was
filed within fourteen days of the Magistrate Judge's
order denying discovery, and the Court will therefore
construe the motion as an objection to that order pursuant to
Magistrate Judge found that Movant was not entitled to
intervene as a matter of right because he had no actual legal
interest in the property or transaction that is the subject
of the litigation in the above-captioned action. ECF No. 114
at 2. The Magistrate Judge also concluded that permissive
intervention was inappropriate because it was evident that
Movant was attempting to intervene in this action in an
effort to circumvent certain requirements of the Prison
Litigation Reform Act (“PLRA”). Id. at
2-3. The Court has reviewed the Magistrate Judge's order
and Movant's motion for reconsideration and nothing
therein persuades the Court that the Magistrate Judge's
rulings are clearly erroneous or contrary to law. The Court
therefore DENIES Petitioner's motion for reconsideration
(ECF No. 117).
Motion for Leave to Appeal in forma
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.” 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). “Good faith” means that an
issue exists on appeal that is not frivolous under an
objective standard. See Coppedge v. United States,
369 U.S. 438, 445 (1962). “An issue is frivolous when
it appears that ‘the legal theories are indisputably
meritless.'” Ghee v. Retailers Nat'l
Bank, 271 F.App'x 858, 859 (11th Cir. 2008) (per
curiam) (quoting Carroll v. Gross, 984 F.2d 392, 393
(11th Cir. 1993)).
case, Movant does not provide a statement of the specific
issues he intends to present on appeal in his motion for
leave to appeal in forma pauperis, see Fed.
R. App. P. 24(a)(1)(C), and upon reviewing the record, the
Court finds no issues of arguable merit for appeal. Thus, for
the reasons contained in the Magistrate Judge's Order
(ECF No. 114), the Court finds that Movant's appeal is
not taken in good faith under 28 U.S.C. § 1915(a)(3).
Movant's motion for leave to appeal IFP (ECF No. 120) is
accordingly DENIED. If the Movant 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.
There appears to be a split of
authority regarding whether a motion to intervene is “a
dispositive motion which must ultimately be decided by an
Article III judge in the absence of consent, ”
Newman v. Sun Capital, Inc., No. 2:09-cv-445, 2010
WL 326069, at *1 (M.D. Fla. Jan. 21, 2010), or “a
non-case-dispositive motion, which permits a magistrate judge
to enter an order (as opposed to a report and
recommendation), which is then reviewable under the clearly
erroneous or contrary-to-law standard, ” Bake House
SB, LLC v. City of Miami Beach, No. 17-20217-CV, 2017 WL
2645760, at *2 (S.D. Fla. June 20, 2017). The Court adopts
the latter view. See Bake House, 2017 WL 2645760 at
*2 (noting that “[a]lthough ...