Lopez v. Actualidad Radio LLC

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-22692-BLOOM

ARTHUR LOPEZ,

Plaintiff,

v.

ACTUALIDAD RADIO LLC,

Defendants. _________________________/

ORDER ON MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS THIS CAUSE is before the Court upon pro se Plaintiff Arthur Lopez’s Motion for Permission to Appeal In Forma Pauperis, ECF No. [17] (“Application”), filed on August 16, 2023. The Court has carefully reviewed the Application, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Application is denied. “Applications to appeal in forma pauperis are governed by 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24.” Woodson v. Sec’y Dep’t of Corr., No. 02-21921-Civ, 2020 WL 5819808, at *2 (S.D. Fla. Sept. 29, 2020). “An 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). “A party demonstrates good faith by seeking appellate review of any issue that is not frivolous when examined under an objective standard.” Ghee v. Retailers Nat’l Bank, 271 F. App’x 858, 859 (11th Cir. 2008) (citation omitted). An issue is frivolous when it appears that “the legal theories are indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.1993) (citations omitted). “In other words, an IFP action is frivolous, and thus not brought in good faith, if it is ‘without arguable merit either in law or fact.’” Ghee, 271 F. App’x at 859-60 (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)). In his application, Plaintiff states that his issues on appeal are the dismissal of his case, denial of his Motion to Disqualify Judge, Deprivation of Constitutional Civil Rights including the Fourteenth and Seventh Amendment Rights, and Dismissal of his case prior to the Motion to

Disqualify Judge Bloom. ECF No. [17] at 1. The Court concludes that the issues raised are frivolous. The Court’s Order Dismissing Plaintiff’s case specified that the dismissal was without prejudice and with leave to amend. ECF No. [4] at 3. As such, the Dismissal Order does not constitute a final judgment for purposes of appeal. The Eleventh Circuit has explained that “[a] dismissal without prejudice, which is not appealable, is distinguished from a dismissal with prejudice, which is appealable.” Versa Products, Inc. v. Home Depot, USA, Inc., 387 F.3d 1325, 1327 (11th Cir. 2004). The appeal of that Order is therefore frivolous. Likewise, Plaintiff’s appeal of the Court’s Order on Plaintiff’s Motion to Reassign Case is not taken in good faith. See ECF No. [12]. As the Court explained in that Order, Title 28 U.S.C. § 455 prescribes the standard for disqualification of a judge from a particular proceeding and the

undersigned did not find a basis for recusal after consideration of the Plaintiff’s Motion. Id. The Eleventh Circuit would evaluate the Court’s determination under the highly deferential abuse-of- discretion standard. See Jenkins v. Anton, 922 F.3d 1257, 1271 (11th Cir. 2019) (“Typically, we review a judge’s decision not to recuse him or herself for an abuse of discretion.”) (internal quotation marks and citation omitted). The Court sees no basis fot the Eleventh Circuit concluding that the Court abused its discretion in these circumstances, because no “objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.” Id. (internal quotation marks and citation omitted). Case No. 23-cv-22692-BLOOM

In sum, the Court concludes that Plaintiff has failed to seek appellate review “of any issue that is not frivolous when examined under an objective standard.” Ghee, 271 F. App’x at 859. The Court therefore finds Movant’s appeal to be frivolous and “certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Accordingly, it is ORDERED AND ADJUDGED that the Application, ECF No. [17], is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, on August 17, 2023.

BETH BLOOM UNITED STATES DISTRICT JUDGE Copies to: Arthur Lopez P.O. Box 13081 Newport Beach, CA 92658 PRO SE