United States District Court, M.D. Georgia, Macon Division
ASHLEY ROYAL, SENIOR JUDGE UNITED STATES DISTRICT COURT.
Roy Mandell Smith has filed two motions for leave to proceed
in forma pauperis on appeal (ECF No. 13;
ECF No 18) related to his motion for preliminary injunction
and motion for summary judgment. Applications to appeal in
forma pauperis are governed by 28 U.S.C. § 1915 and Fed.
R. App. P. 24. 28 U.S.C. § 1915 provides:
(a)(1) [A]ny court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees or security therefore, by a person who
submits an affidavit that includes a statement of all assets
such prisoner possesses that the person is unable to pay such
fees or give security therefor. Such affidavit shall state
the nature of the action, defense or appeal and affiant's
belief that the person is entitled to redress. . . .
(3) An appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good
Fed. R. App. P. 24(a) provides:
(1) [A] party to a district-court action who desires to
appeal in forma pauperis must file a motion in the district
court. The party must attach an affidavit that:
(A) shows . . . the party's inability to pay or to give
security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on
(2) If the district court denies the motion, it must state
its reasons in writing.
the Court must make two determinations when faced with an
application to proceed in forma pauperis. First, it must
determine whether the Plaintiff is financially able to pay
the filing fee required for an appeal. Plaintiff's
application and certified trust fund account in this case
indicates that he is unable to pay the $505 appellate filing
the Court must determine if the Plaintiff has satisfied the
good faith requirement. “‘[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.; Morris v. Ross,
664 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) (quotation
marks and citations omitted); Carroll v. Gross, 984
F.2d 392, 393 (11th Cir. 1993) (“[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
reviewing Plaintiff's motion and the record, the Court
finds that Plaintiff has no arguable basis for an appeal.
Plaintiff seeks to appeal because his motion for
“Demand for Injunctive Relief and Summary
Judgment” were not “automatically granted in the
Plaintiff's favor.” ECF No. 18. Plaintiff further
states that “this is called default judgment (failing
to answer to true claims) where summary judgment and
injunctive relief is automatically granted.”
Id. at 2. The Court has not yet ruled on
Plaintiff's July 11, 2017, motion, therefore, there is no
judgment from which to appeal. Moreover, a waiver of service
was mailed on June 8, 2017, (ECF No 8) and Defendant filed an
answer on August 4, 2017. ECF No. 16. Mailing a waiver of
service does not constitute service of process. And assuming
waiver of service, Defendants answer is within the 60-day
period for filing an appropriate responsive pleading. The
appeal, therefore, is not brought in good faith as there are
no issues with arguable merit. Consequently, Plaintiff's
Motions to appeal in forma pauperis (ECF No. 13; ECF
No. 18) are DENIED.
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 section1915(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 ...