Opinion
Case No. 05-73608.
January 25, 2006
On November 18, 2005, this Court entered an opinion and order dismissing Plaintiff's pro se civil rights complaint for declaratory and injunctive relief brought pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's "Motion for Certificate of Appealability." Because Plaintiff is appealing a dismissal of an action brought pursuant to Section 1983, it is not necessary for Plaintiff to obtain a "Certificate of Appealability." However, Section 1915(a)(3) provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). In the context of Section 1915, "good faith" simply means "not frivolous." Coppedge v. United States, 369 U.S. 438, 445, 92 S. Ct. 917, 921 (1962). An appeal is taken in good faith if it presents a legal issue that is arguable on its merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In its opinion and order of November 18, 2005, this Court dismissed Plaintiff's complaint because Plaintiff failed to state a claim upon which relief may be granted. Although continuing to believe that Plaintiff's complaint fails to state a cause of action and therefore is subject to dismissal, this Court does not believe that Plaintiff should be denied his opportunity to seek appellate review. Therefore, this Court believes that Plaintiff's appeal is "taken in good faith." 28 U.S.C. § 1915(a)(3).
On November 30, 2005, Plaintiff filed a motion for reconsideration, which this Court denied on January 24, 2006. This Certificate of Good Faith Appeal applies to the Court's order denying Plaintiff's Motion for reconsideration, as well as the Court's November 18, 2005 Order of Dismissal.
Accordingly,
IT IS ORDERED that Plaintiff is GRANTED a certificate of good faith appeal pursuant to 28 U.S.C. § 1915(a)(3).