United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE
Travis Mitchell has filed an application to appeal in
forma pauperis. For the following reasons, that
application (Doc. 47) is GRANTED.
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
(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
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. 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.
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
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