United States District Court, M.D. Georgia, Macon Division
ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT
the Court is Plaintiff's Motion for Leave to Proceed in
Forma Pauperis [Doc. 47] on appeal. After reviewing
the record, the Court DENIES Plaintiff's
motion. Plaintiff seeks to appeal the Court's denial of
his Motion to Set Aside Default Judgment [Doc. 43].
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 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
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
(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. Plaintiff's
application states that he is currently incarcerated and has
no source of income. [Doc. 47, at 1]. For purposes of this
motion only, the Court will assume without deciding that,
based on these facts, Plaintiff sufficiently pled his
inability to pay the filing fee.
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
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), this Court's independent review of the
issues addressed in the Order Denying Motion to Set Aside
Default Judgment [Doc. 43] demonstrates that Plaintiff's
appeal is frivolous. 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). The decision to set aside a default judgment is
within the Court's discretion and there is no arguable
basis for finding the Court abused its discretion when it
denied Plaintiff's Motion to Set Aside Default Judgment.
The appeal, therefore, is not brought in good faith.
Plaintiff has raised no issues with arguable merit.
Consequently, the Court DENIES
Plaintiff's Motion for Leave to Proceed in Forma
Pauperis [Doc. 47].
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 section1915(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 ...