Opinion
CIVIL No: 7:11-CV-88-HL-TQL
08-28-2015
ARNOLD JOHNSON, Plaintiff, v. CO II BOYD, et al., Defendants.
ORDER
Plaintiff Arnold Johnson has filed a motion to proceed in forma pauperis ("IFP") on appeal (ECF No. 74) from the Court's July 27, 2015 Order adopting the United States Magistrate Judge's recommendation and granting Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 69). 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); see also Fed. R. App. P. 24(a)(3) ("A party who was permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis . . . unless . . . the district court . . . certifies that the appeal is not taken in good faith[.]"). "Good faith" means that an issue exists on appeal that is not frivolous under an objective standard. See Coppedge v. United States, 369 U.S. 438, 445 (1962). "An issue is frivolous when it appears that 'the legal theories are indisputably meritless.'" Ghee v. Retailers Nat'l Bank, 271 F. App'x 858, 859 (11th Cir. 2008) (per curiam) (quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)).
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). --------
While the good-faith test under Section 1915 does not require a preliminary showing of any particular degree of merit, the examining court must at least be able to determine from the IFP application whether the appeal involves legal points arguable on their merits. DeSantis v. United Techs. Corp., 15 F. Supp. 2d 1285, 1289 (M.D. Fla. 1998) (citations omitted) (adopting U.S. Magistrate Judge's recommendation's findings as to IFP application). In this case, the Court cannot determine whether Plaintiff's appeal meets the good faith requirements of § 1915 because Plaintiff submitted only information regarding his finances and no information regarding his reasons for appealing. The Court therefore ORDERS Plaintiff to supplement his motion to explain his issues on appeal no later than TWENTY-ONE (21) days from the date of this Order.
In addition, a prisoner proceeding in forma pauperis must submit (1) an affidavit in support of his claim of indigence and (2) "a certified copy of [his] trust fund account statement (or institutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(1)-(2). Although Plaintiff's already-filed motion for leave to appeal in forma pauperis included an affidavit supporting his claim of indigence, Plaintiff failed to submit a complete, certified copy of his prison trust fund account statement. Accordingly, Plaintiff is DIRECTED to submit a proper motion to proceed without the prepayment of the filing fee, which should include a certified copy of his trust fund account statement, within TWENTY-ONE (21) days from the date of this Order. The Clerk is DIRECTED to forward Plaintiff a copy of the account certification form.
Failure to timely comply with this Order may result in denial of Plaintiff's Motion.
SO ORDERED this 28th day of August, 2015.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE