BANKS v. TERRY ( 2020 )

IFNO TRH TEH UEN MITIDEDD LSET ADTISETSR DICISTT ORFIC GTE COORUGRIAT MACON DIVISION LEROY BANKS, ) ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 5:18-CV-435 (MTT) ) Deputy STEPHEN FIELDS, et al., ) ) ) Defendants. ) __________________ ) ORDER Plaintiff Leroy Banks has moved for leave to appeal in forma pauperis the Court’s orders (Docs. 46; 49) granting Defendant Terry Anthony’s and Defendants Stephen Fields and Dawn Lewis’ motions to dismiss (Docs. 31; 33). Doc. 53. Banks brought 42 U.S.C. § 1983 claims against the Defendants, and his motion to proceed IFP was granted. Docs. 1; 2; 10. His complaint was entirely dismissed. Docs. 10; 25; 41; 42; 43; 46; 49. Following the dismissal, Banks filed a notice of appeal and the present motion. Docs. 50; 53. Although indigent, Banks has no absolute right to appeal IFP, and his ability to appeal IFP is limited by 28 U.S.C. §1915(a)(3). Section 1915(a)(3) states 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.” An appeal that is frivolous is not taken in good faith. Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (holding that an action is frivolous for § 1915 purposes if it is without arguable merit either in law or in fact); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (holding that a case is frivolous for IFP purposes if, at any stage of the proceedings, it appears the plaintiff “has little or no chance of success”). After reviewing the motion and the orders Banks appeals, the Court concludes the appeal is not taken in good faith, that it is plainly frivolous, and that Banks has little or no chance of success. His complaint was dismissed because his claims are barred by Georgia’s two-year statute of limitations. Docs. 43; 46; 49. Banks has also failed to identify any colorable basis for appeal or for concluding that the Court’s order was made in error, and the Court has been unable to discern any such basis. See generally Docs. 50; 53. Banks’ appeal is thus frivolous, and he is ineligible for IFP status pursuant to § 1915(a)(3). Accordingly, Banks’ motion (Doc. 53) is DENIED. SO ORDERED, this 4th day of February, 2020. S/ Marc T. Treadwell MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT