Opinion
CIVIL ACTION NO. 5:17-cv-00303-TES-CHW
09-09-2020
EDDIE JAMES KING, Plaintiff, v. Dr. Lawson, et al., Defendants.
ORDER
Before the Court is King's Motion to Appeal [Doc. 96]. King earlier filed a similar Motion to Appeal [Doc. 81]. The Court denied it because the case was ongoing and King did not meet the requirements for an interlocutory appeal. [Doc. 82]. Now that King has settled with the only remaining defendant [Doc. 95], he may now appeal the Court's earlier grant of summary judgment to Defendant Lawson [Doc. 76]. Since King is free to file a Notice of Appeal with the Clerk of Court pursuant to Federal Rule of Appellate Procedure 3, the Court construes King's current Motion to File Appeal [Doc. 96] as a Request to Appeal in forma pauperis.
The Court previously granted King permission to proceed in forma pauperis in this case. [Doc. 6]. Federal Rule of Appellate Procedure 24(a)(3) provides that "[a] party who was permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis without further authorization," unless "a statute provides otherwise." There is a statute that provides otherwise. 28 U.S.C. § 1915(a)(2) provides that a prisoner seeking to appeal a judgment in a civil action must "submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the . . . notice of appeal." King has not provided the required copy of his trust fund statement. This omission alone allows the Court to deny any motion to appeal in forma pauperis.
Further, even if King had complied with the requirements of 28 U.S.C. § 1915(a)(2), his request to proceed in forma pauperis still fails. If the 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); 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.'"). "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.
King states that the reasons for his appeal are "apparent from the face of the record." [Doc. 96, p. 1]. Specifically, King restates his deliberate indifference arguments that the Court has already considered and rejected when the Court granted summary judgment to Defendant Lawson. [Doc. 96]; [Doc. 76]. As discussed in the Court's order granting Defendant Lawson summary judgment, King's deliberate indifference claims lack merit. [Doc. 76, pp. 3-6]. Accordingly, as the Court finds that King has little or no chance of a successful appeal of the Court's Order granting summary judgment to Defendant Lawson, the Court DENIES Plaintiff's Motion to Appeal [Doc. 96] to the extent it is a Motion to Appeal In Forma Pauperis.
SO ORDERED, this 9th day of September, 2020.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT