United States District Court, M.D. Georgia, Macon Division
ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
E. SELF, III, JUDGE.
Michael Snelling, Jr., moves for leave to proceed in
forma pauperis on appeal. [Doc. 17]. On August 23, 2019,
the Court adopted the United States Magistrate Judge's
recommendation and dismissed Plaintiff's Complaint
without prejudice for failure to state a cliam. [Docs. 10,
11]. In addition to the Court's finding that
Plaintiff's Notice of Appeal [Doc. 14] is untimely, there
is also is no good faith basis for appeal in this case. Fed.
R. App. P. 4(a)(1)(A); Fed. R. App. P. 24(a)(3). Therefore,
the Court DENIES his Motion for Leave to
Appeal In Forma Pauperis [Doc. 17].
may authorize an appeal of a civil action or proceeding
without prepayment of fees or security therefor if the
putative appellant has filed “an affidavit that
includes a statement of all assets” and “state[s]
the nature of the . . . appeal and [the] affiant's belief
that the person is entitled to redress.” 28 U.S.C.
§ 1915(a)(1). If the trial court certifies in writing
that the appeal is not taken in good faith, however, such
appeal may not be taken in forma pauperis. 28 U.S.C.
§ 1915(a)(3). “‘[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.; see also Morris v.
Ross, 663 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) (per curiam) (citations omitted);
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)
(per curiam) (“[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 omitted).
Plaintiff states that he is making this appeal because he
feels like the Court does not believe his statements
“just because [he is an] inmate.” [Doc. 17 at p.
1]. Plaintiff also mentions several different cases in the
instant Motion, but in any event, even a cursory glance at
Plaintiff's Notice of Appeal shows that he failed to
state a single issue he intends to present on appeal. Fed. R.
App. P. 24(a)(1); [Doc. 14]. While Plaintiff-via his Notice
of Appeal-may attempt to name a specific prison official in
an effort to provide more factual detail to help demonstrate
his claims, he may not do so at his stage. See Jacobs v.
Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344-45 (11th
Cir. 2010) (holding that a plaintiff has no right to amend a
complaint after judgment dismissing the complaint is
entered); see also [Doc. 14 at p. 2].
reviewing the record for this Order, the Court noted that two
weeks after it adopted the magistrate judge's
recommendation and entered Judgment, Plaintiff filed another
document in which he appears to make one final attempt to
comply with the magistrate judge's earlier pleading
instructions. [Doc. 7 at pp. 4-5]; [Doc. 13]. However, a
review of this document demonstrates that Plaintiff once
again-despite extremely clear instructions on how to do
so-failed to plead facts sufficient to show that any named
Defendant (in this case) personally participated in the
deprivation of his constitutional rights. See
generally [Doc. 13]; see also Douglas v. Yates,
535 F.3d 1316, 1321- 22 (11th Cir. 2008) (dismissal of
defendants appropriate where plaintiff failed to allege facts
associating defendants with a particular constitutional
addition to his failure to adhere to the pleading
requirements prescribed by the Federal Rules of Civil
Procedure as outlined by the magistrate judge's
instructions, Plaintiff simply filed his Notice of Appeal too
late. See [Docs. 12, 14] in connection with
Fed. R. App. P. 4(a)(1)(A); see also [Doc. 7 at pp.
4-5]. The Court entered its Judgment [Doc. 12] on August 26,
2019, and under the prison mailbox rule, a pro se
prisoner's filing “is deemed filed on the date it
is delivered to prison authorities for mailing.”
Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th
Cir. 2009); see also Houston v. Lack, 487 U.S. 266,
275-76 (1988) (explaining that “the notice of appeal
was filed at the time [prisoner] delivered it to the prison
authorities for forwarding to the court clerk”). And,
“[a]bsent evidence to the contrary, ” a prisoner
delivers his filing to prison authorities “on the date
that he signed it.” Jeffries v. United States,
748 F.3d 1310, 1314 (11th Cir. 2014). Therefore, giving
Plaintiff the benefit of all doubt, he at best filed his
Notice of Appeal on October 15, 2019-the date he signed the
filing and the date on which prison officials postmarked the
envelope. [Doc. 14]; [Doc. 14-2]. However, by operation of
the prison mailbox rule, Federal Rule of Civil Procedure
6(d)-which allows for three days to be added to the response
time for parties who receive service of filings by mail-and
Federal Rule of Civil Procedure 6(a)(1), Plaintiff had until
September 30, 2019, at the latest to date and sign his Notice
of Appeal. Consequently, his Notice of Appeal dated October
15, 2019, is 15 days too late. [Doc. 14 at p. 3].
from Plaintiff's failure to adhere to the pleading
requirements for claims asserted under 42 U.S.C. § 1983
and the untimeliness of his Notice of Appeal, the Court's
independent review of the issues addressed in the magistrate
judge's Recommendation and the Court's Order adopting
the same 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 a plaintiff); see
also Fed. R. App. P. 4(a)(1)(A); [Doc. 10 at p. 3
(explaining to Plaintiff that “[t]o state a claim for
relief under [42 U.S.C.] § 1983, ” he “must
allege that (1) an act or omission deprived him of a right,
privilege, or immunity secured by the Constitution or a
statute of the United States; and (2) the act or omission was
committed by a person acting under color of state
law.”)]. Since Plaintiff never provided sufficient
factual allegations to support his claims and failed to
associate each named Defendant with an alleged violation of
his constitutional rights, as instructed, this appeal is not
brought in good faith. Douglas, 535 F.3d at 1321-22,
supra. Plaintiff raises no issues with arguable
merit, and accordingly, his Motion for Leave to Appeal In
Forma Pauperis [Doc. 17] is DENIED.