Kister v. Wynn (INMATE 1)

• Court: District Court, M.D. Alabama
• Decided: January 19, 2024
• Docket: 2:21-cv-00222
• Status: Unknown

Opinion

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JOHN ANDREW KISTER, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:21cv222-MHT ) (WO) MARIA WYNN, et al., ) ) Defendants. )

ORDER This cause is now before the court on plaintiff's notice of appeal (Doc. 56), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915(a)(3) provides that "an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." See also F.R.A.P. 24(a)(3)(A) (“A party who was permitted to proceed in forma pauperis in the district-court action ... may proceed on appeal in forma pauperis without further authorization, unless ... the district court--before or after the notice of appeal is filed--certifies that the appeal is not taken in good faith”). In making this determination as to

good faith, a court must use an objective standard, such as whether the appeal is "frivolous," Coppedge v. United States, 369 U.S. 438, 445 (1962), or "has no substantive merit." United States v. Bottoson, 644

F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981). Applying this standard, this

court is of the opinion that the plaintiff's appeal is without a legal or factual basis and, accordingly, is frivolous and not taken in good faith. See, e.g.,

Rudolph v. Allen, supra; Brown v. Pena, 441 F. Supp. 1382 (S.D. Fla. 1977), aff'd without opinion, 589 F.2d 1113 (5th Cir. 1979). ***

Accordingly, it is ORDERED that the plaintiff's motion to proceed on appeal in forma pauperis is

2 denied; and that the appeal in this cause is certified, pursuant to 28 U.S.C. § 1915(a), as not taken in good

faith. DONE, this the 19th day of January, 2024.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE