United States District Court, M.D. Georgia, Macon Division
DARRELL D. CROSS, Plaintiff,
Warden PHILLIP HALL, et al., Defendants.
T. TREADWELL, JUDGE.
Darrell Cross filed an application to appeal in forma
pauperis (“IFP”). Docs. 46; 51. The Plaintiff
seeks to appeal from the Court's judgment dismissing the
action (Doc. 44) following its Order (Doc. 43) adopting the
Magistrate Judge's Report and Recommendation (Doc. 37)
and granting the Defendants' motion to dismiss (Doc 34).
Doc. 45. Applications to appeal IFP 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 IFP. First, it must determine whether
the plaintiff is financially able to pay the filing fee
required for an appeal. 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
the Plaintiff did not include the required financial
information, he did not sufficiently allege poverty, so the
Court ordered that he supplement his motion. Doc. 49. The
Plaintiff has now done so. Doc. 51. He states he is
unemployed, owns no property, has no income, and has a
balance of $0.00 in his prisoner account. Id. That
affidavit adequately demonstrates he is unable to pay the
appellate filing fee of $505.00.
the Court must determine whether the plaintiff has satisfied
the good faith requirement. 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), this
Court's independent review of the issues addressed in the
Report and Recommendation (Doc. 37) regarding the motion to
dismiss, the Plaintiff's objection to the Recommendation
(Doc. 41), the Plaintiff's “Supplement to
Motion” (Doc. 50), and the Plaintiff's other
correspondence (Doc. 52) demonstrates that the
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).
appeal, therefore, is not brought in good faith. The
Plaintiff has raised no issues with arguable merit.
Consequently, the Plaintiff's application ...