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Mitchell v. Taylor

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

December 17, 2018

TRAVIS JONATHAN MITCHELL, Plaintiff,
v.
Warden CEDRIC TAYLOR, et al., Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE

         Plaintiff Travis Mitchell has filed an application to appeal in forma pauperis. For the following reasons, that application (Doc. 47) is GRANTED.

         The Plaintiff seeks to appeal from judgment in favor of the Defendants (Doc. 42) following the Court's Order (Doc. 41) granting the Defendants' motion to dismiss (Doc. 39) for failure to exhaust. Docs. 43; 48-1. Applications to appeal in forma pauperis 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 therefor, 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. The Plaintiff is unemployed and has no cash or money in bank accounts or valuable assets. Doc. 47 at 1-2. He has $10.00 in his account at Hays State Prison, and over the last six months, he has had an average balance of $1.67 in that account and average monthly deposits of $0. Id. at 3. Based on this information, the Court finds that the Plaintiff has demonstrated poverty under 28 U.S.C. § 1915 and is unable to pay court fees.

         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. 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) (citations omitted). “Arguable means 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 . . . for the asserted wrong, however inartfully pleaded.'” Sun, 939 F.2d at 925 (citations omitted).

         Although the Plaintiff has not submitted a statement of the issues he intends to appeal, as is required under Fed. R. App. P. 24(a)(1)(C), review of the “Plaintiff's Appeal to District Court's Recommendation to Dismiss” (Doc. 48-1), filed in the Court of Appeals for the Eleventh Circuit, demonstrates that the Plaintiff's appeal is not frivolous. The appeal appears to turn on a finding of the Magistrate Judge to which the Plaintiff did not object: a finding that he had received a response to his second grievance on May 10, 2016. Docs. 37 at 5; 41 at 5. Typically, the failure to object would prevent the Plaintiff from challenging this finding on appeal. However, the Plaintiff here is proceeding pro se, and as explained in more detail below, the Recommendation was ultimately in favor of the ...


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