United States District Court, M.D. Georgia, Macon Division
ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF
TIME  AND MOTION FOR LEAVE TO APPEAL IN
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT.
two months after the Court entered Judgment [Doc. 30] in the
above-captioned case, Plaintiff James Clifford Geiger filed a
Motion for Out-of-Time Appeal (hereinafter
“Motion”) [Doc. 33] and a Motion for Leave to
Appeal In Forma Pauperis (hereinafter “IFP
Motion”) [Doc. 34]. As explained in further detail
below, the Court DENIES both motions.
Appeal In Forma Pauperis Standard
trial court certifies in writing that the appeal is not taken
in good faith, 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). A 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's Motions Regarding an Appeal
October 10, 2019, the Court dismissed Plaintiff's Amended
Complaint [Doc. 16] without prejudice for a number of
reasons. See generally [Doc. 29]. First, the
Eleventh Amendment barred Plaintiff's 42 U.S.C. §
1983 claims asserted against the Georgia Department of
Corrections (“GDC”), and state sovereign immunity
barred the state-law claims Plaintiff brought against the
GDC. [Id. at pp. 4-6]. Second, Plaintiff's
failure to exhaust his administrative remedies pursuant to
the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)
(“PLRA”), barred his claims against the
individual GDC employees named in his Amended Complaint.
[Id. at pp. 6-8]. The following day, the Court
on December 19, 2019,  Plaintiff moved the Court for leave to
file an out-of-time appeal. [Doc. 33]. Generally, to be
timely, a notice of appeal in a civil case must be filed in
the district court within 30 days after the entry of the
judgment or order. See Fed. R. App. P. 4(a)(1)(A). A
district court may extend the time to file a notice of appeal
if a party moves for an extension no later than 30 days after
the initial filing period expires and the party shows
excusable neglect or good cause. See Fed. R. App. P.
4(a)(5). The time to file an appeal may also be reopened for
a period of 14 days if a district court finds that
(1) the moving party did not receive notice of the entry of
the judgment or order appealed within 21 days after entry;
(2) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party
receives notice of the entry, whichever is earlier; and (3)
no party would be prejudiced.
Watkins v. Plantation Police Dep't, 733
Fed.Appx. 991, 994 (11th Cir. 2018) (citing Fed. R. App. P.
4(a)(6)). “Even if all three prongs are met, however, a
district court may, in its discretion, deny a motion to
Plaintiff does not specify whether he is seeking relief under
Federal Rule of Appellate Procedure 4(a)(5) or 4(a)(6).
However, a review of Plaintiff's arguments in his Motion
shows that neither Rule 4(a)(5) or Rule 4(a)(6) would permit
an appeal to be taken in this case.
Plaintiff's Motion makes no reference to excusable
neglect or good cause, Fed. R. App. P. 4(a)(5), nor does it
state that he did not receive notice of the Court's
Judgment, Fed. R. App. P. 4(a)(6). To the contrary, Plaintiff
filed a letter (contemporaneously with his Motion) dated
“October 17, 2019, ” that he received from his
attorney notifying him of the Court's ruling, advising
against filing a motion for reconsideration or appeal, and
clearly stating that Plaintiff was “free to hire other
counsel if [he] desire[d].” [Doc. 33-1 at p. 1]. Based
on the handwritten dates on the face of the letter, Plaintiff
ostensibly received it on October 24, 2019, well within Rule
4(a)(6)(A)'s 21-day notification period initiated by an
entry of judgment. Fed.R.Civ.P. 4(a)(6)(A). Thus, there can
be no finding that Plaintiff “did not receive notice of
the entry of the judgment or order appealed within 21 days
after entry, ” and relief under Federal Rule of
Appellant Procedure 4(a)(6) is not warranted.
Plaintiff is left only with the good-cause or
excusable-neglect route, and the Court, therefore,
CONSTRUES his Motion as one for an extension
of time under Federal Rule of Appellant Procedure 4(a)(5).
Nonetheless, Plaintiff cannot--nor does he even attempt
to--meet the mandates of Rule 4(a)(5). Most notably,
Plaintiff did not timely move for an extension within 30 days
from the expiration of his initial time to appeal, and this
avenue is likewise, foreclosed. See Fed. R. App. P.
4(a)(5)(A)(i). Moreover, in this untimely Motion, he merely
argues that his attorney's letter to him “was
insufficient to put [him] on notice that he could proceed
[pro se] or request appointment of counsel as an
indigent on appeal.” [Doc. 33 at p. 2]. Neither of
these reasons are sufficient to demonstrate the requisite
“good cause” or “excusable neglect”
necessary to permit the Court to overlook Plaintiff's
delinquent filing and extend his time to appeal. His Motion
dated December 19, 2019, is seven days too late.
Compare [Doc. 30] with [Doc. 33 at p. 3];
see also Fed. R. App. P. 4(a)(5). In addition to the
Court's finding that any appeal taken in this case would
be 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.
regard to Plaintiff's IFP Motion, a court 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).
Here, Plaintiff did neither. To support his extension-of-time
request (as well as his IFP Motion), Plaintiff only argued
that his attorney “was permitted to withdraw without
filing the mandated motion to withdraw after exhibiting a
lack of knowledge as to the mandate of [the] PLRA” and
its requirement “that prisoners exhaust prison
grievance procedure[s], ” and that his attorney's
“deficient performance now works to deny [him] [his]
right to timely appeal [the] Court['s] decision to
dismiss his [Amended Complaint.]” [Doc. 33 at p. 2].
also contends that the Court appointed his attorney and that
he was not “given the opportunity to object to
appointment of this counsel.” [Id. at p. 1].
However, this is simply untrue. Plaintiff's attorney
initiated this civil action when he filed the original
Complaint [Doc. 1] on Plaintiff's behalf, and there is
nothing in the record to show that the Court appointed
anyone. Before Plaintiff's attorney filed the original
Complaint, the Court had no knowledge of this case's
existence to even have the ...