United States District Court, M.D. Georgia, Macon Division
ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT
pending before the Court is pro se Plaintiff Darnell
Nolley's motion for leave to appeal in forma
pauperis from the Court's April 11, 2018 Order
denying Plaintiff's motion for appointed counsel. [Docs.
167, 177]. For the following reasons, the Court DENIES
Plaintiff's motion. [Doc. 177].
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). “‘[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).
states in his motion to proceed in forma pauperis
that he ultimately “seeks to petition the Supreme Court
for a writ of certiorari concerning whether the denial of
appointment of counsel is immediately appealable” in
his § 1983 case. [Doc. 177 at 2]. While Plaintiff
correctly observes that a circuit split exists as to this
issue, the Eleventh Circuit has clearly held, in an en
banc opinion, that “an order denying a motion for
appointed counsel in an in forma pauperis action brought
pursuant to 42 U.S.C. § 1983” is not immediately
appealable under 28 U.S.C. § 1291. Holt v.
Ford, 862 F.2d 850, 851 (11th Cir. 1989) (en banc).
But see, e.g., Jackson v. Dallas Police Dep't,
811 F.2d 260, 261 (5th Cir. 1986) (per curiam) (holding that
ruling denying motion for appointed counsel in § 1983
case was appealable as a final order pursuant to §
1291); see also Welch v. Smith, 484 U.S. 903 (1987)
(White, J. & Blackmun, J., dissenting from denial of
certiorari on issue and noting circuit split).
Moreover, the Court's review of its decision that
Plaintiff is not presently entitled to the appointment of
counsel reveals no arguable issues of merit therein. The
appeal, therefore, is not brought in good faith. The Court
accordingly DENIES Plaintiff's motion
for leave to appeal in forma pauperis [Doc. 177].
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.
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 ...