Johnson v. Brooks et al

Middle District of Florida, flmd-8:2017-cv-01384

REPORT AND RECOMMENDATIONS re {{12}} MOTION for leave to appeal in forma pauperis/affidavit of indigency filed by Leland R. Johnson. Signed by Magistrate Judge Mark A. Pizzo on 9/15/2017. (DK)

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PageID 56 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LELAND R. JOHNSON, Plaintiff, v. CASE NO. 8:17-cv-1384-T-23MAP KEVIN BROOKS, et al., Defendants. ____________________________/ REPORT AND RECOMMENDATION Before the Court is Plaintiff's Affidavit of Indigency that is construed as a Motion to Proceed on Appeal In Forma Pauperis (doc. 12). On August 25, 2017, the Plaintiff filed a Notice of Appeal challenging the Court's denial of his motion to proceed in forma pauperis and dismissal of his amended complaint (doc. 10). Notwithstanding his apparent indigent status, Plaintiff has no absolute right to appeal in forma pauperis. To the contrary, his ability to appeal without prepayment of fees and costs is conditioned by 28 U.S.C. § 1915(a)(3), which 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." Id.; see also Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D.Fla. 1999). An appeal that is plainly frivolous is not taken in good faith. See United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997). See generally Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (action is frivolous for § 1915 purposes if it is without arguable merit either in law or in fact); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (same); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (case is frivolous for PageID 57 IFP purposes if, at any stage of the proceedings, it appears the plaintiff "has little or no chance of success"). For the same reasons cited by the district judge in the order dismissing the Plaintiff's amended complaint (doc. 9), I find that the Plaintiff has failed to identify any colorable basis for appeal or for concluding that the Court's order dismissing the amended complaint was in error. Moreover, the Court has been unable to discern any such basis. Accordingly, this Court concludes that the instant appeal is not taken in good faith, that it is plainly frivolous, and that Plaintiff has little or no chance of success. He is therefore ineligible for in forma pauperis status pursuant to 28 U.S.C. § 1915(a)(3). ACCORDINGLY, it is hereby RECOMMENDED: 1. that Plaintiff's Motion to Proceed In Forma Pauperis (doc. 12) be DENIED. IT IS SO REPORTED in Tampa, Florida, on September 15, 2017. NOTICE TO PARTIES Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal. 28 U.S.C. § 636(b)(1). 2