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Blandburg v. Allen

United States District Court, M.D. Georgia, Valdosta Division

May 8, 2018

MARTY C ALLEN, et al., Defendants.



         Plaintiff 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. § 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 faith.
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 appeal.
(2) If the district court denies the motion, it must state its reasons in writing.

         Thus, 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.

         Next, 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 omitted).

         The 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.

         Moreover, 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)). ...

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