Opinion
22-CV-8411 (LTS)
11-14-2022
JOSEPH J. GENTILE, JR., Plaintiff, v. EDWARD BURNETT; JOHN WOOD; LUIS GONZALES; M. FEUZ, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge
Plaintiff, who is currently incarcerated at Mohawk Correctional Facility, brings this pro se action under 42 U.S.C. § 1983. Plaintiff originally filed this action in the United States District Court for the Western District of New York. That court transferred the action here because it involves claims that arose during Plaintiff's incarceration in Fishkill Correctional Facility, which is located in Dutchess County, New York, within this district.
By order dated October 26, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees.For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
Plaintiff Joseph Gentile, Jr. is incarcerated in the custody of the New York State Department of Corrections and Community Supervision (DOCCS), pursuant to his 2007 conviction in the Supreme Court of the State of New York, Queens County. People v. Gentile, 73 A.D.3d 944, 944-46 (2d Dep't 2010), Iv denied, 935 N.E.2d 821 (N.Y. 2010).
Plaintiff was sentenced to eighteen years in prison on one count, to run concurrently with a term of six years and a term of one year on other counts, plus five years of post-release supervision. See Gentile v. Larkin, No. 12-CV-0055 (ERK), 2018 WL 1459449, at *1 (E.D.N.Y. Mar. 23, 2018) (denying petition for a writ of habeas corpus under 28 U.S.C. § 2254). According to public records of DOCCS, Plaintiff's earliest release date is currently November 25, 2023.
Plaintiff alleges the following facts. While in DOCCS custody, Plaintiff completed the Alcohol and Substance Abuse Treatment and Aggression Replacement Training programs. (ECF 1 at 14.) Toward the end of 2020, Plaintiff began participating in the Sex Offender Counseling and Treatment Program (SOCTP) at Fishkill Correctional Facility, which Social Worker Maria Feuz facilitated. In January 2021, Plaintiff was notified that he would be released to parole on April 27, 2021. (Id. at 5.) In a letter attached to the complaint, Plaintiff writes that he “was told by Fishkill DSP John Wood that all [he] need[ed] to do is complete the last phase of the SOP and satisfy the program.” (Id. at 14.) Plaintiff began obtaining approval of his plans for release, including his proposed residence with his mother-in-law and his planned employment with a master electrician. (Id. at 6.) He attaches a copy of a record from the DOCCS website, which lists his “conditional release date” as April 27, 2021. (Id. at 16-17.)
Plaintiff began having conflicts in the SOCTP with Social Worker Feuz. Plaintiff states that “five (5) months and a week into the six (6) month program, Ms. Feuz began making what appeared to be some inappropriate physical gestures/advances toward [him] - e.g., positioning her buttocks in front of [him] to encourage some type of reaction from him, as well as directly asking what arouses him sexually.” (Id. at 13.) He responded that this “is between God, him, and his wife, and nobody else,” and he filed “a formal PREA complaint,” referring to the Prison Rape Elimination Act (PREA). (Id.) Plaintiff also had an argument with Social Worker Feuz during the SOCTP class about whether homosexuality is deviant.
Plaintiff attaches to the complaint a “referral and recommendation sheet” from the SOCTP Review Committee, dated April 12, 2021, which states that due to his “unsatisfactory participation” and “unsatisfactory behavior,” the Treatment Program Review Committee recommends Plaintiff's termination from the SOCTP program. (Id. at 19.) The document is signed by Offender Rehabilitation Coordinator (ORC) Owens; Senior ORC Reid; and Social Worker Feuz. Also attached to the complaint is a document titled, “Program Refusal Notification,” which lists Plaintiff's name and states “I am refusing to participate in the . . . Sex Offender Counseling and Treatment Program”; it is signed by Feuz and someone else whose name is illegible, but the “signature of inmate” line is blank, and the box “inmate refused to sign” is checked.(Id. at 22.)
The date on the Program Refusal Notification is illegible in the copy submitted to the Court, but Plaintiff asserts that it was signed on April 28, 2021. (ECF 1 at 12.)
On April 16, 2021, the court received Plaintiff's first complaint bringing claims in connection with the SOCTP, which was opened as Gentile v. Annucci, No. 21-CV-3405 (VB) (S.D.N.Y. Feb. 7, 2022). In that action, Plaintiff alleged that requiring him to attend the SOCTP program violated his religious freedom as a Muslim. Defendants moved to dismiss that action on October 7, 2021. That same day, October 7, 2021, the United States District Court for the Western District of New York received this new complaint. Plaintiff alleges in this complaint that Social Worker Feuz retaliated against him for filing his earlier religious-freedom suit by conspiring with Gonzales, Wood, and Burnett “to defraud Plaintiff of the required Due Process of a ‘parole rescission procedure,'” thereby failing to release him to parole in April 2021.(Id. at 4.) Nearly one year after this complaint was filed, on October 2, 2022, the United States District Court for the Western District of New York transferred this action to this Court.
On February 7, 2022, Judge Briccetti granted Plaintiff's request to voluntarily dismiss his complaint in Gentile, No. 21-CV-3405 (VB) (S.D.N.Y.), and that action is now closed.
Both complaints named the following five defendants: Fishkill Superintendent Edward Burnett; Deputy John Wood; Assistant Deputy Luis Gonzales; Social Worker Feuz; and Acting DOCCS Commissioner Anthony Annucci.
Plaintiff attaches to the complaint his undated letter to prison authorities, in which he states that he had filed multiple written grievances regarding his termination from the SOCTP, which had gone unanswered. (Id. at 14). On May 4, 2021, Plaintiff wrote that his grievance titled “illegal detention,” had been retitled as “cancelled release date.” (Id. at 20.) He argued in the grievance that he had a due process right to a parole hearing before his parole release authorization was “take[n]” from him. (Id.) Plaintiff attaches the May 13, 2021, response from the Inmate Grievance Review Committee, which states that “a review of grievant's record shows that he refused sex offender programming and will now be seen by the time allowance committee in May [2021] to determine if his good time should be withheld.” (Id. at 21.)
Plaintiff states that the DOCCS grievance procedure does not govern decisions of the Time Allowance Committee or the New York State Board of Parole. (Id. at 7.)
Plaintiff states that he fully exhausted his grievance remedies, by appealing to Fishkill Superintendent Burnett and the Central Office Review Committee. He also filed an Article 70 habeas petition in the Supreme Court of the State of New York, Dutchess County, Gentile v. Burnett, Index No. 390/2021 (filed May 17, 2021), which he says Justice Maria G. Rosa transferred to Erie County, where it remained pending, as of October 2021, when he filed this complaint.
Because of the issues with the SOCTP, DOCCS raised Plaintiff's “programmatic risk level,” resulting in his transfer to Collins Correctional Facility, with the requirement that he participate in the SOCTP for an additional year before the Time Allowance Committee (TAC) would consider his release. (Id. at 5.)
Plaintiff brings constitutional claims under Section 1983 for the denial of procedural due process, “illegal confinement” in violation of his rights under the Eighth Amendment, and retaliation in violation of the First Amendment, as well as conspiracy to violate his constitutional rights. Plaintiff also asserts a state law claim for harassment. Plaintiff seeks damages and injunctive relief, including a declaration that he is entitled to have his April 2021 parole release date reinstated, the termination of Feuz's employment, and an injunction against further retaliation.
DISCUSSION
A. Procedural Due Process Claims
The Court understands Plaintiff to be alleging that he was scheduled for release in April 2021, apparently based on the Fishkill TAC's calculation of his earned or projected good-time credits. When Plaintiff did not successfully complete the SOCTP as planned, the TAC recalculated his good-time credits and thus his release date. It is unclear if Plaintiff had any hearing or other opportunity to present his view before the TAC, or the Commissioner's designee, recalculated his good-time credits and release date. Plaintiff contends that the manner in which his April 2021 release date was “revoked,” violated his constitutional right to procedural due process.
“In evaluating due process claims, the threshold issue is always whether the plaintiff has a property or liberty interest protected by the Constitution.” Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001) (alteration and internal quotation marks omitted). Prisoners do not have a protected liberty interest in parole if the relevant statutory scheme endows prison authorities with discretion over the decision whether to grant it. See Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 9-11, (1979); Barna v Travis, 239 F.3d 169, 170-71 (2d Cir. 2001). A prisoner does have a protected liberty interest in an award of good-time credits, however, if the applicable state statutory scheme provides that credits, once awarded, may be revoked only under specific circumstances. Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974); see also Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (reaffirming Wolff's holding). In such an instance, the prisoner is entitled to a hearing that meets certain minimum due process requirements before earned good-time credits may be revoked. See Wolff, 418 U.S. at 557-58, 563-72.
In Edwards v. Goord, 362 Fed.Appx. 195 (2d Cir. 2010), the Second Circuit addressed a claim similar to the one Plaintiff raises here. The Attica Correctional Facility's TAC had granted Edwards, a state prisoner, a discretionary award of nearly six years of good-time credits, but he was then transferred to Gowanda Correctional Facility, where Gowanda's TAC recommended that Edwards's “refusal to participate in sex offender counseling made him an inappropriate candidate” for the discretionary award of any good-time credits. The DOCCS Commissioner, through his designee, had initially affirmed the Attica TAC's recommendation that the credits be awarded, but the Commissioner thereafter affirmed the Gowanda TAC's new recommendation to deny any good-time credits. Edwards filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, contending that depriving him of the previously approved good-time credits, which altered his release date, violated his Fourteenth Amendment right to due process of law. The district court denied the petition, and the Second Circuit affirmed, reasoning as follows:
[U]nder Wolff, the arbitrary revocation of previously awarded good time credits runs afoul of the Fourteenth Amendment's guarantee of due process. 418 U.S. at 557. But here, the discretionary award of good time credits to Edwards was reconsidered in accordance with the procedures generally set forth in N.Y. Comp. Codes R. & Regs tit. 7, §§ 261.3-261.4. Edwards received a second hearing before the Commissioner, through his designee, ultimately adopted the Gowanda TAC's recommendation that Edwards' refusal to participate in sex offender counseling made him an inappropriate candidate for such an award. Edwards does not contend that this second hearing was procedurally deficient under Wolff or any other applicable precedent. Moreover, Edwards does not dispute that his refusal to participate in sex offender counseling was a relevant consideration under the applicable statute. See N.Y. Corrections Law § 803(1)(a) (providing that good time credits “may be granted for . . . progress and achievement in an assigned treatment program, and may be withheld, forfeited or canceled in whole or in part for . . . failure to perform properly in the . . . program assigned”).Edwards, 362 Fed.Appx. at 197.
Here, Plaintiff alleges that his previously awarded good-time credits were revoked. Assuming for the purposes of this order that he had a protected liberty interest in such earned credits, the question then becomes whether Plaintiff received the process that he was due. Wolff provides that generally, before being deprived of a liberty interest, incarcerated individuals have the right to receive timely notice, the opportunity to be heard, and a written statement of evidence relied on and reasons for the action being taken. See Benjamin v. Fraser, 264 F.3d 175, 190 (2d Cir. 2001); see also Edwards v. Balisok, 520 U.S. 641, 648 (1997) (“[R]evocation of good-time credits does not comport with the minimum requirements of procedural due process, unless the findings are supported by some evidence in the record.”) (quotations and citation omitted).
Documents attached to the complaint appear to suggest that the Fishkill TAC scheduled Plaintiff to “be seen” after his participation in SOCTP ended unsuccessfully. (ECF 1 at 21). It is unclear whether Plaintiff actually had an opportunity to present, in some fashion, his version of the events that transpired with the SOCTP. Because the complaint does not identify the deficiencies in the process afforded to him, if any, before the Commissioner recalculated his release date, the allegations provided in the complaint fail to state a claim that Plaintiff was denied the constitutional right to procedural due process.
I. Repleading Section 1983 claims for damages
Plaintiff, however, may be able to allege additional facts about the alleged deficiencies in the process that he received when his previously awarded good-time credits were revoked, and the Court therefore grants Plaintiff leave to do so. As explained below, insofar as Plaintiff seeks to restore his good time credits and earlier release date, he must bring such claims in a petition for a writ of habeas corpus rather than a civil rights action.
Whether Plaintiff can also bring a procedural due process claim for damages under Section 1983 depends on whether such a claim would be inconsistent with the decision about his good time credits. The doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994), provides that “a state prisoner's § 1983 action is barred . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v Dotson, 544 U.S. 74, 8182 (2005); Edwards v. Balisok, 520 U.S. 641, 643 (1997) (“[R]espondent's claim for declaratory relief and money damages, based on allegations of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity of the punishment imposed, is not cognizable under § 1983”).
If Plaintiff brings an amended complaint asserting a Section 1983 claim for damages, he must identify the deficiency in the process that he received in the course of the redetermination of his good time credit award and parole release date. If such a deficiency would necessarily demonstrate the invalidity of the decision, the Heck doctrine bars a Section 1983 claim for damages unless the Commissioner's decision has been overturned. See, e.g., Adams v. Annucci, No. 17-CV-3794 (KMK), 2018 WL 4608216, at *5 (S.D.N.Y. Sept. 25, 2018) (“[W]ere the Court to find that Defendant's SOTP policy, which required Plaintiff to forgo his earned and future Good Time Credits, was arbitrary, discriminatory, or unconstitutional punishment, it would necessarily imply the invalidity of his continued confinement beyond the date of his conditional release,” and Heck therefore barred such a damages claim); Edwards, 520 U.S. at 649-50 (although allegations that the decisionmaker was biased would necessarily imply the invalidity of the deprivation of good-time credits, other procedural due process defects, such as a failure to specify the facts and evidence supporting the decision, would not necessarily imply the invalidity of the deprivation and would therefore be cognizable in a Section 1983 action). If Plaintiff amends his complaint to replead an action for damages under Section 1983, his amended complaint must include facts showing whether the earlier revocation of good time credits has been modified or rescinded.
Re Repleading claims to restore good-time credits
A state prisoner's procedural due process claim challenging a decision that affects the length of confinement is properly brought in a petition for a writ of habeas corpus under 28 U.S.C. § 2254, rather than in a civil rights action. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that state prisoners deprived of good-time credits as a result of disciplinary proceedings must file petition under Section 2254 and not 42 U.S.C. § 1983); accord, e.g., Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006). The proper vehicle for Plaintiff's claim seeking to restore his earlier 2021 release date is a Section 2254 habeas petition.
State courts must be given the first opportunity to review the constitutional errors that the petitioner wishes to raise in a Section 2254 petition. O'Sullivan v. Boerckel, 526 U.S. 838, 84445 (1999). Before bringing constitutional claims in federal court in a Section 2254 petition, therefore, a prisoner must present his claims to the state court for review. A petitioner may satisfy the exhaustion requirement by fairly presenting his claims through a complete round of the state's established appellate review process. Id. “A petitioner has ‘fairly presented' his claim only if he has ‘informed the state court of both the factual and legal premises of the claim he asserts in federal court.'” Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982)).
Plaintiff alleges that he filed a state habeas petition under Article 70, although he does not provide any details about the claims that he raised. It is also unclear whether the state court ruled on the petition and, if so, whether he appealed. If Plaintiff wishes to pursue injunctive relief restoring his good time credits in this Court at this time, he must file a Section 2254 that includes facts about the nature of the claims that he has presented to the state court and what steps he has taken to fully exhaust such claims. Such petition must be filed within 60 days of the date of this order and bear the docket number of this case, 22-CV-8411 (LTS).
If Plaintiff files a Section 2254 petition, it may thereafter be opened as a separate action, depending on whether he also files an amended civil rights complaint.
B. Eighth Amendment Claim
Plaintiff invokes the Cruel and Unusual Punishment Clause of the Eighth Amendment. He contends that he has been illegally held past his April 2021 release date, in violation of his constitutional rights. This claim, like Plaintiff's due process claim, is subject to the doctrine set forth in Heck. Because Plaintiff's claim that he was entitled to release in April 2021 is necessarily inconsistent with the decision revoking his good-time credits and recalculating his release date, he can pursue this Section 1983 claim only if the decision recalculating his release date is overturned. See Wilkinson, 544 U.S. at 81-82 (“[A] state prisoner's § 1983 action is barred . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”). Plaintiff does not allege that the decision was overturned, and the Heck principle therefore bars Plaintiff's Section 1983 claim under the Eighth Amendment.
C. First Amendment Claim
Plaintiff alleges that Defendant Feuz retaliated against him for filing a complaint asserting claims of religious discrimination in the SOCTP program. To state a First Amendment retaliation claim, a plaintiff must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (citing Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).
To sufficiently allege a causal connection between protected activity and an adverse action, the plaintiff's “allegations must support an inference that the protected conduct was a substantial and motivating factor for the adverse action.” Dorsey v. Fisher, 468 Fed.Appx. 25, 27 (2d Cir. 2012) (summary order). A plaintiff can establish a causal connection giving rise to an inference of retaliation by showing, for example, that the protected activity was close in time to the adverse action. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001); Espinal, 558 F.3d at 129.
Plaintiff's filing of the complaint, in Gentile, No. 21-CV-3405 (VB) (S.D.N.Y.), qualifies as protected First Amendment activity. He contends that, in retaliation for filing the complaint, Defendant Feuz and others conspired to have his parole release date delayed by rating his performance in the SOCTP as deficient. The Treatment Program Review Committee decision recommending Plaintiff's termination from SOCTP was dated April 12, 2021, four days before the Court received Plaintiff's complaint in Gentile, No. 21-CV-3405 (VB) on April 16, 2021; the court opened that action on the public docket on April 19, 2021, and Defendant Feuz was served with the complaint on or about July 9, 2021. Gentile, No. 21-CV-3405 (ECF 20). The timing of Plaintiff's termination from the SOCTP - which apparently took place before Plaintiff's religious discrimination complaint in Gentile, No. 21-CV-3405, was opened on the docket, and before Feuz was served with the complaint - does not in itself give rise to any inference that she was retaliating against Plaintiff for this protected First Amendment activity. Moreover, Plaintiff does not plead any other facts that could give rise to an inference of a causal connection between his First Amendment activity and Defendant Feuz's actions.
Even if Plaintiff's allegations had stated a claim that Feuz terminated him from the SOCTP in retaliation for his First Amendment activity, such a Section 1983 claim would be necessarily inconsistent with the Treatment Program Review Committee's stated reason for the recommendation to revoke Plaintiff's good-time credits - his own actions in connection with the SOCTP.
If Plaintiff amends his complaint to replead this Section 1983 claim for retaliation, he must plead facts that would support an inference that his filing of the complaint in Gentile, No. 21-CV-3405 (VB), “was a substantial and motivating factor,” Dorsey, 468 Fed.Appx. at 27, for Feuz's recommendation that Plaintiff be terminated from SOCTP. He must also plead facts showing that success on the First Amendment retaliation claim would not necessarily be inconsistent with the decision recalculating his release date based on his termination from the SOCTP.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid Section 1983 claim for damages for a denial of procedural due process, the Court grants Plaintiff 60 days' leave to amend his complaint to detail the alleged defects in the process provided when his good time credits were revoked and his parole release date changed. To state a Section 1983 claim for damages for his First and Eighth Amendment claims, Plaintiff must include facts showing that success on these claims would not necessarily be inconsistent with the decision to revoke his good-time credits and recalculate his release date.
In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief. Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
In addition to his Section 1983 claims for damages, if Plaintiff seeks to restore his earlier release date, he must pursue such claims in a petition for a writ of habeas corpus under Section 2254, and include facts about his exhaustion of state court remedies.
CONCLUSION
Plaintiff is granted leave to file an amended civil rights complaint that complies with the standards set forth above, and, if he wishes to do so, a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Plaintiff must submit either (or both) of these pleadings to this Court's Pro Se Intake Unit within 60 days of the date of this order, and label the document(s) with docket number 22-CV-8411 (LTS). An Amended Civil Rights Complaint form and a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 form are attached to this order. No summons will issue, and no answer shall be required, at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.