United States District Court, M.D. Georgia, Macon Division
ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA
E. SELF, III, UNITED STATES DISTRICT JUDGE.
pending before the Court is Waseem Daker's
(“Movant”) pro se motion for leave to
appeal in forma pauperis [Doc. 124], in which Mr.
Daker seeks to appeal the Court's August 15, 2017 order
adopting the United States Magistrate Judge's
recommendation and denying Movant's motion to intervene
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). “Good faith” means that an
issue exists on appeal that is not frivolous under an
objective standard. See Coppedge v. United States,
369 U.S. 438, 445 (1962). “An issue is frivolous when
it appears that ‘the legal theories are indisputably
meritless.'” Ghee v. Retailers Nat'l
Bank, 271 Fed.Appx. 858, 859 (11th Cir. 2008) (per
curiam) (quoting Carroll v. Gross, 984 F.2d 392, 393
(11th Cir. 1993)).
case, Movant does not provide a statement of the specific
issues he intends to present on appeal in his motion for
leave to appeal in forma pauperis, see Fed.
R. App. P. 24(a)(1)(C), and upon reviewing the record, the
Court finds no issues of arguable merit for appeal. See
Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999),
overruled on other grounds by Lee v. Clinton, 209
F.3d 1025 (7th Cir. 2000) (explaining that the arguments to
be advanced on appeal are often obvious and decisions
regarding good faith can be made by looking at the
“reasoning of the ruling sought to be appealed”
instead of requiring a statement from the plaintiff). Thus,
for the reasons contained in the Magistrate Judge's
Recommendation [Doc. 109] and the Court's Order adopting
the same [Doc. 112], the Court finds that Movant's appeal
is not taken in good faith under 28 U.S.C. § 1915(a)(3).
Movant's motion for leave to appeal IFP [Doc. 124] is
Movant wishes to proceed with his appeal, he must pay the
entire $505 appellate filing fee. Because Movant 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 Movant 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 Movant'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 Movant 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 the party intends to present on
appeal. Fed. R. App. P. 24(a).
The Court also notes that the
“three strikes” provision of the Prison
Litigation Reform Act 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
28 U.S.C. § 1915(g). Movant 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: Daker v. Mokwa, Order Denying
Leave to Proceed IFP, ECF No. 2 in Case No.
2:14-cv-00395-UA-MRW (C.D. Cal. Feb. 4, 2014) (denying leave
to proceed in forma pauperis and dismissing case
after conducting screening under 28 U.S.C. §
1915(e)(2)(B) and finding claims were frivolous and failed to
state a claim upon which relief may be granted); Daker v.
Warren, Order Dismissing Appeal, Case No. 13-11630 (11th
Cir. Mar. 4, 2014) (three-judge panel dismissal of appeal on
grounds that appeal was frivolous); Order Dismissing Appeal,
Daker v. Warden, Case No. 15-13148 (11th Cir. May
26, 2016) (three-judge panel dismissing appeal as frivolous);
Order Dismissing Appeal, Daker v. Commissioner, Case
No. 15-11266 (11th Cir. Oct. 7, 2016) (three-judge panel
dismissing appeal as frivolous); Order Dismissing Appeal,
Daker v. Ferrero, Case No. 15-13176 (11th Cir. Nov.
3, 2016) (three-judge panel dismissing appeal as frivolous);
Order Dismissing Appeal, Daker v. Governor, Case No.
15-13179 (11th Cir. Dec. 19, 2016) (three-judge panel
dismissing appeal as frivolous). Movant has therefore accrued
more than three “strikes” for purposes of §
1915(g), and he is thus precluded from ...