Kersey v. Trump

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

GEORGE KERSEY, * * Plaintiff, * * v. * Civil Action No. 23-12019-IT * DONALD TRUMP, * * Defendant. *

ORDER

November 16, 2023

TALWANI, D.J.

Plaintiff George Kersey,1 has filed a Notice of Appeal [Doc. No. 6] challenging this court’s November 1, 2023 Order [Doc. No. 4] dismissing this action for lack of jurisdiction. Now before the court is Kersey’s Motion for Leave to Appeal in Forma Pauperis [Doc. No. 7]. For the reasons stated below, the court will deny the motion. I. Absence of the Required Financial Affidavit Under the Federal Rules of Appellate Procedure, a person moving for leave to appeal in forma pauperis must attach to his motion an affidavit that “(A) shows in the detail prescribed by Form 4 of the Appendix of Forms [to the Federal Rules of Appellate Procedure] the party’s inability to pay or to give security for fees and costs; [and] (B) claims an entitlement to redress.” Fed. R. App. P. 24(a)(1). Kersey’s motion to appeal in forma pauperis is not accompanied by any financial affidavit. Rather, Kersey simply “requests renewal of his pauper status for which [he] had

1 Kersey is representing himself in this action. applied.” [Doc. No. 7 at 1]. Kersey did file a two-page Application to Proceed in District Court Without Prepaying Fees or Costs (“Application”) when he commenced the action [Doc. No. 3], but the court ordered that the motion be terminated as moot because the case was dismissed for lack of jurisdiction, [Doc. No. 4]. Even if the court considers that motion, it is insufficient

because it (1) does not include detailed information sought in the appellate form; (2) does not indicate his assets; and (3) does not disclose the amount of social security benefits he is receiving. II. Appeal not Taken in Good Faith Under the in forma pauperis statute, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Regardless of any subjective good faith on the part of the appellant, “good faith” within the meaning of 28 U.S.C. § 1915(a)(3) is only demonstrated when a litigant seeks “appellate review of any issue not frivolous.” Coppedge v. United States, 369 U.S. 438, 445 (1962). An issue is frivolous if “no reasonable person could suppose [it] to have any merit.” Lee v. Clinton, 209 F.3d

1025, 1026 (7th Cir. 2000). Here, Kersey’s appeal is frivolous. As the court explained in its November 1, 2023 order, the court lacks jurisdiction over Kersey’s claim regarding the alleged misconduct of former president Donald Trump because Kersey does not have standing to bring the claim. Kersey did not allege facts showing that any injury he suffered from Trump’s alleged misconduct was “particularized” to him. Horne v. Flores, 557 U.S. 433, 445 (2009). Rather, he complained of “harm to his and every citizen’s interest in proper application of the Constitution and laws.” Lujan v. Defenders of Wildlife 504 U.S. 555, 573 (1992). III. Conclusion Accordingly, the court hereby orders: 1. The Motion for Leave to Appeal in Forma Pauperis [Doc. No. 7] is DENIED. 2. The clerk shall transmit a copy of this order to the United States Court of Appeals

for the First Circuit. 3. If Kersey would still like to pursue in forma pauperis status on appeal, he may, within thirty (30) days, file a new motion for leave to appeal in forma pauperis with the United States Court of Appeals for the First Circuit. See Fed. R. App. P. 24(a)(5).2 The clerk shall provide Kersey with a blank Affidavit Accompanying Motion for Permission to Appeal in Forma Pauperis.3 IT IS SO ORDERED. /s/ Indira Talawani United States District Judge November 16, 2023

2 Rule 24(a)(5) of the Federal Rules of Appellate Procedure provides: A party may file a motion to proceed on appeal in forma pauperis in the court of appeals within 30 days after service of the notice [of the district court’s order denying the motion to appeal in forma pauperis]. The motion must include a copy of the affidavit filed in the district court and the district court’s statement of reasons for its action. If no affidavit was filed in the district court, the party must include the affidavit prescribed by Rule 24(a)(1).

Fed. App. P. 24(a)(5). 3 This form is also available at https://www.ca1.uscourts.gov/sites/ca1/files/form4.pdf (last visited Nov. 16, 2023).