PARKMAN v. MUSCOGEE COUNTY SCHOOL DISTRICT

• Court: District Court, M.D. Georgia
• Decided: March 16, 2022
• Docket: 4:21-cv-00179
• Status: Unknown

Opinion

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

BRUCE HARRISON PARKMAN, JR, : : Plaintiff, : VS. : : CASE NO. 4:21-CV-179-CDL-MSH MUSCOGEE COUNTY SCHOOL : DISTRICT, et al., : : Defendants. : __________________________ :

ORDER Presently pending before the Court is pro se Plaintiff Bruce Harrison Parkman, Jr.’s, motion for leave to appeal in forma pauperis (“IFP”) (ECF No. 23) from the Court’s February 14, 2022, Order (ECF No. 17) adopting the Magistrate Judge’s Recommendation (ECF No. 13) and dismissing the case. For the following reasons, Plaintiff’s motion (ECF No. 23) is DENIED. 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

1 Federal Rule of Appellate Procedure 24 similarly requires a party seeking leave to appeal IFP to file a motion and affidavit that However, if the trial court certifies in writing that the appeal is not taken in good faith such appeal may not be taken IFP. 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

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)(1). pleaded.’” Sun, 939 F.2d at 925 (citations omitted). Plaintiff does not appear to have submitted a statement of the issues he intends to appeal, as required under Fed. R.

App. P. 24(a)(1)(C). Rather, he directs the Court’s attention to various documents attached to his motion. Pl.’s Mot. for Leave to Appeal IFP 1, ECF No. 23. These attachments consist of an unspecified balance sheet, a report card from Penn Foster High School, the order and judgment dismissing this case, a copy of the docket in this case, and various emails.

See generally Pl.’s Mot. for Leave to Appeal IFP Attachs. 1- 4, ECF Nos. 23-1, 23-2, 23-3, 23-4. From what the Court can discern, Plaintiff continues to seek relief from his allegedly unconstitutional expulsion from high school. See Pl.’s Mot. for Leave to Appeal IFP Attach. 4, at 1-2. The

Court dismissed Plaintiff’s complaint for this same failure to clarify the factual and legal basis for his claim after receiving multiple opportunities to do so. R. & R. 1-2, ECF No. 13; Order 1, ECF No. 17 (adopting recommendation). Plaintiff did not object to the recommendation of dismissal and does not now argue that the Court erred in doing so. The

appeal, therefore, is not brought in good faith as Plaintiff has raised no issues with arguable merit. Fed. R. Civ. P. 72(a) (“A party may not assign as error a defect in the order not timely objected to.”); see also Curry v. Sec’y, 665 F. App’x 766, 768 (11th Cir. 2016) (“‘While dismissal is an

extraordinary remedy, dismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.’” (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). Accordingly, Plaintiff’s motion for leave to appeal IFP (ECF No. 23) is DENIED. If Plaintiff wishes to proceed with

his appeal, he must pay the entire $505 appellate filing fee. Checks should be made payable to “Clerk, U.S. District Court.” SO ORDERED, this 16th day of March, 2022.

S/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA