United States District Court, M.D. Georgia, Valdosta Division
LAWSON, SENIOR JUDGE.
Deotis B. Blandburg has filed a motion for leave to proceed
in forma pauperis (“IFP”) on appeal (ECF
No. 70) from the Court's March 21, 2018, Order (ECF No.
63) adopting the Magistrate Judge's Recommendation (ECF
No. 57) that Defendant's Motion to Dismiss (ECF No. 39)
be granted and Plaintiff's complaint be dismissed as
time-barred. Applications to appeal IFP are governed by 28
U.S.C. § 1915 and Fed. R. App. P. 24. 28 U.S.C. §
(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
Similarly 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 in this case indicates that he is unable to pay
the $505 appellate filing fee.
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
Court adopted the Magistrate Judge's Recommendation that
Plaintiff's complaint be dismissed as time-barred under
the Georgia's 2-year statute of limitations. However,
Plaintiff seeks to argue on appeal that his claims are timely
pursuant to O.C.G.A. § 9-2-61, Georgia's renewal
statute. As an initial matter, Plaintiff failed to plead
renewal as is required by Georgia case law. See Whitesell
v. Georgia Power Company, 341 Ga.App. 279 (2017)
(affirming dismissal of purported renewal action where
plaintiff failed “to affirmatively show in his pleading
that the  suit was a properly filed renewal suit”).
Under Georgia law, in order to rely on the renewal statute
“to relieve the plaintiff of the bar of the statute of
limitations, it is necessary for the renewal petition to show
affirmatively that the former petition was not a void
suit.” Belcher v. Folsom, 258 Ga.App. 191, 192
(2002) (quoting Morrison v. Bowen, 106 Ga.App. 464
(1962)). Plaintiff not only failed to show that his former
complaint was not a void suit, but failed to plead renewal
whatsoever and in fact concealed the prior case when prompted
by the Court's standard complaint form to disclose his
litigation history. See e.g. Morrison, 106
Ga.App. 464. On this basis alone, Plaintiff's argument is
without arguable merit.
Georgia's renewal statute applies when the original
action is recommenced within six months of the first
action's dismissal. Plaintiff filed the instant action
(1) outside the typical limitations period; and (2) within
the six-month statutory deadline found in Georgia's
renewal statue. However, under Georgia law, a case is
commenced when service of process is perfected. See Geary
v. City of Snellville, 205 Fed.Appx. 761, 762-63 (11th
Cir. 2006) (quoting Stevens v. Shields, 271 Ga.App.
141, 142 (2004)). ...