Opinion
Civil 4:23-CV-98-CDL-MSH
01-18-2024
HERMAN MORRIS, JR, Petitioner, v. Judge WILLIAM C RUMER, Respondent.
ORDER
CLAY D. LAND U.S. DISTRICT COURT JUDGE.
Presently pending before the Court is pro se Petitioner Herman Morris Jr.'s motion for leave to proceed in forma pauperis on appeal (ECF No. 15). Petitioner seeks to appeal the October 30, 2023 Order adopting the Recommendation of the United States Magistrate Judge and dismissing Petitioner's Petition as successive (ECF No. 9).
Pursuant to 28 U.S.C. § 1915(a)(1), 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.”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). A party 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) (quotation marks and 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).
Federal Rule of Appellate Procedure 24 similarly requires a party seeking leave to appeal in forma pauperis to file a motion and affidavit that establishes the party's inability to pay fees and costs, the party's belief that he is entitled to redress, and a statement of the issues which the party intends to present on appeal. Fed. R. App. P. 24(a).
Although Petitioner does not appear to have included a statement of the issues he intends to appeal in his motion, as is required under Fed. R. App. P. 24(a)(1)(C), this Court's independent review of the issues addressed in the Magistrate Judge's August 2, 2023 Order and Recommendation (ECF No. 7) and Petitioner's subsequent filings demonstrates that this 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). Petitioner has raised no issues with arguable merit, and therefore the appeal is not brought in good faith. Petitioner's motion for leave to appeal in forma pauperis (ECF No. 15) is accordingly DENIED.
SO ORDERED.