United States District Court, M.D. Georgia, Macon Division
ASHLEY ROYAL, SENIOR JUDGE
pending before the Court is pro se Plaintiff Carlton
Michael Gary's motion for leave to appeal in forma
pauperis from the Court's September 1, 2016 Order
adopting the United States Magistrate Judge's report and
recommendation and dismissing Plaintiff's Complaint
without prejudice. For the following reasons, the Court
DENIES Plaintiff's motion (ECF No. 57).
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). The “three strikes”
provision of the Prison Litigation Reform Act
(“PLRA”) also prohibits a prisoner from
“appeal[ing] a judgment in a civil action or
proceeding” in forma pauperis
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
has had more than three of his cases or appeals dismissed on
the statutorily-enumerated grounds prior to filing his notice
of appeal in this case: Gary v. Hall, Order
Dismissing Compl., ECF No. 6 in Case No.
5:08-cv-00072-CAR-CWH (M.D. Ga. Mar. 21, 2008) (failure to
exhaust administrative remedies); Gary v. Owens,
Order Dismissing Compl., ECF No. 33 in Case No.
5:10-cv-00061-MTT (M.D. Ga. Mar. 9, 2011) (failure to exhaust
administrative remedies); Gary v. Hall, ECF No. 36
in Case No. 5:07-cv-00149-CAR (M.D. Ga. Mar. 17, 2008)
(failure to exhaust administrative remedies). Plaintiff has
therefore accrued more than three “strikes” for
purposes of § 1915(g), and he is thus precluded from
proceeding in forma pauperis on appeal unless he is
presently in imminent danger of serious physical injury. In
his reply to Defendants' response opposing his motion to
appeal in forma pauperis, Plaintiff alleges only
that he was at some time exposed to “friable
asbestos” during his incarceration. See, e.g.,
ECF No. 59 at 6. But Plaintiff has alleged no specific facts
regarding this purported asbestos exposure in his motion or
reply or explained how such exposure placed him in imminent
danger at the time he filed his notice of
appeal. Such conclusory allegations are not enough
to overcome the § 1915(g) bar. See, e.g., Miller v.
Meadows, No. 5:05-CV-29-CAR, 2005 WL 1983838, at *5
(M.D. Ga. Aug. 11, 2005) (finding claims that prisoner was
“exposed to asbestos” were not
“sufficiently pled and supported with specific facts to
demonstrate” that prisoner was in imminent danger of
serious physical injury); Woods v. Crockett-Harris,
Civil Action No. 2:12-cv-00231, 2012 WL 5877419, at *4 (S.D.
Ohio Nov. 20, 2012) (“Plaintiff has failed to support
his allegation with facts demonstrating how his prior
placement in a room purportedly containing asbestos gives
rise to imminent danger.”). Cf. also Gibbs v.
Cross, 160 F.3d 962, 965-66 (3d Cir. 1998) (district
court erred in finding no imminent danger where prisoner
alleged he was in a “dusty cell” that he believed
contained asbestos, that “unidentified dust particles
were in his lungs and mucus, ” and that he was
“suffering from severe headaches, watery eyes, and a
change in his voice as a result”).
has also failed to allege a good faith basis for his appeal.
“‘[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).
Court has reviewed Plaintiff's motion to proceed in
forma pauperis, Defendants' response, and
Plaintiff's reply as well as the notice of appeal and all
prior orders in this case and finds no good faith basis for
Plaintiff's appeal. Plaintiff's appeal would be
frivolous as to each issue raised for the reasons stated in
Court's prior orders. The Court therefore certifies,
pursuant to § 1915(a)(3), that Plaintiff's appeal is
not taken in good faith.
these reasons, Plaintiff's application to appeal in
forma pauperis (ECF No. 57) 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.
Plaintiff's motion for an extension of time to submit a
motion to proceed in forma pauperis (ECF No. 56) is
DENIED as moot.
Court also notes that although Plaintiff has not raised this
issue, Plaintiff is entitled to have any initial partial
filing fees refunded to him in light of the fact that the
Court determined that Plaintiff was not permitted to proceed
in this action in forma pauperis after he had
already paid an initial partial filing fee. The Clerk is
therefore DIRECTED to refund any partial
filing fees paid by Plaintiff in the above-captioned action.
Federal Rule of Appellate Procedure 24
similarly requires a party seeking leave to appeal in
forma pauperis to file a motion and affidavit that
establishes the party's inability to pay fees and costs,
the party's belief that he is entitled to redress, and a
statement of the issues which ...