Smith v. United States of America (INMATE 3)

Opinion

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MICHAEL SMITH, ) ) Petitioner, ) ) CIVIL ACTION NO. v. ) 2:17cv270-MHT ) (WO) UNITED STATES OF AMERICA, ) ) Respondent. )

ORDER This cause is now before the court on the petitioner's notice of appeal (doc. no. 28), which the court is treating as a motion to proceed on appeal in forma pauperis. 28 U.S.C. § 1915(a)(3) provides that "[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." 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 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 petitioner'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 petitioner's motion to proceed on appeal in forma pauperis is denied; and that the appeal in this cause is certified,

pursuant to 28 U.S.C. § 1915(a)(3), as not taken in good faith. DONE, this the 13th day of July, 2020. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE