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Teems v. Wingfield

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

April 3, 2019

JIMMY RAY TEEMS, Plaintiff,
v.
HUGH V. WINGFIELD, III, et al., Defendants.

          ORDER

          MARC T. TREADWELL, UNITED STATES DISTRICT COURT JUDGE

         Plaintiff Jimmy Ray Teems has filed an application to appeal in forma pauperis. Doc. 42. That motion is DENIED.

         The Plaintiff seeks to appeal the Court's Order of February 6, 2019 (Doc. 40). Doc. 41. That Order adopted the Magistrate Judge's Recommendation (Doc. 36) to grant in part and deny in part the Defendants' motion to dismiss (Doc. 20), and it denied the Plaintiff's motion for reconsideration (Doc. 26) of the Court's earlier Order (Doc. 19) adopting the Magistrate Judge's Recommendation on preliminary screening (Doc. 8). Doc. 40. The Plaintiff also seeks to appeal the Magistrate Judge's Order granting in part and denying in part the Plaintiff's motion to amend (Doc. 36 at 3). Doc. 41.

         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's affidavit, in which he states he has no income from any sources, and his trust account statement, which states he has $59.00 of spendable money, adequately demonstrate the Plaintiff's inability to pay the appellate filing fee of $505.00. Docs. 42; 42-1 at 1.

         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 ...


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