Caleb L. McGillvary v. Greg Hartley, et al.

Opinion

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

CALEB L. MCGILLVARY, : : Plaintiff, : : CIVIL ACTION v. : No. 5:24-CV-81 (CAR) : GREG HARTLEY, et al.; : : Defendants. : ___________________________________ :

ORDER ON MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Before the Court is pro se Plaintiff Caleb L. McGillvary’s Motion for Leave to Appeal In Forma Pauperis (“IFP”). As explained below, Plaintiff’s Motion [Doc. 75] is GRANTED. On September 30, 2025, this Court granted Defendants’ Motion for Judgment on the Pleadings,1 dismissed Plaintiff’s Amended Complaint against Defendants without leave to amend, and entered Judgment in favor of Defendants on October 1, 2025.2 Plaintiff filed a Notice of Appeal to the Eleventh Circuit Court of Appeals and now seeks to appeal IFP.

1 The Court also found as moot Plaintiff’s Motion for Issuance of Subpoena and Plaintiff’s Motions to extend time for discovery; and denied Plaintiff’s Motion under Rules 12(e) and 12(f). [Doc. 72]. 2 Judgment [Doc. 73]. 28 U.S.C. § 1915(a)(3) sets forth the standard for appealing IFP: “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in

good faith.” “[G]ood faith’ . . . must be judged by an objective standard.”3 A petitioner demonstrates good faith when she seeks review of a non-frivolous issue.4 An issue “is frivolous if it is ‘without arguable merit either in law or fact.’”5 “Arguable means being

capable of being convincingly argued.”6 “In deciding whether an [in forma pauperis] appeal is frivolous, a district court determines whether there is ‘a factual and legal basis . . . for the asserted wrong, however inartfully pleaded.’”7 If the claim is arguable, but

“ultimately will be unsuccessful,” the claim should survive a frivolity review.8 Plaintiff is currently incarcerated in New Jersey State Prison. This Court granted Plaintiff’s motion to proceed IFP in this case,9 and the Court is persuaded that he is unable to pay the costs and fees associated with this appeal. Moreover, while the Court believes

Plaintiff’s appeal ultimately will be unsuccessful, it is not “without arguable merit in either law or fact.”10 Thus, the Court GRANTS Plaintiff’s Motion for Leave to Appeal IFP [Doc. 75].

3 Coppedge v. United States, 369 U.S. 438, 445 (1962). 4 Id.; Morris v. Ross, 664 F.2d 1032, 1033 (11th Cir. 1981). 5 Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002). 6 Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (internal quotation marks and citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). 7 Sun, 939 F.2d at 925 (citations omitted). 8 Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d 512, 515 (11th Cir. 1991). 9 Order Granting Motion to Leave to Proceed IFP [Doc. 7]. 10 Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001); Neitzke v. Williams, 490 U.S. 319, 325 (1989). SO ORDERED, this 18th day of November, 2025.

S/ C. Ashley Royal ______________ C. ASHLEY ROYAL, SENIOR JUDGE UNITED STATES DISTRICT COURT