AMERSON v. SMITH

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

CHRISTOPHER L AMERSON, : : Plaintiff, : : v. : Case No. 5:23-cv-268-MTT-CHW : Warden T SMITH, et al., : : Defendants. : ________________________________ :

ORDER Presently pending before the Court is Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 104) to appeal the April 8, 2025 Order (ECF No. 100) denying reconsideration of the February 18th Order (ECF No. 97), which adopted the recommendation of the United States Magistrate Judge to dismiss all claims against all Defendants except Defendant Bradford. See ECF No. 101 at 1. 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.”1 If the trial court certifies in writing that the appeal is not taken in good faith, however, such appeal may not

1 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). 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). The

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) (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). Although Plaintiff did not include 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 Report and Recommendation (ECF No. 87) and any related filings demonstrates that Plaintiff’s 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). Plaintiff has raised no issues with arguable merit, and therefore the appeal is not brought in good faith. Plaintiff’s motion for leave to appeal in forma pauperis (ECF No. 104) is accordingly DENIED.

SO ORDERED, this 12th day of June, 2025. S/ Marc T. Treadwell_____ MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT