IDAHOSA v. MCCARTHY ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION ROBERT O. IDAHOSA, : : Plaintiff, : VS. : : CASE NO. 4:20-CV-92 (CDL) SECRETARY OF THE ARMY, : : Defendant. : __________________________ : ORDER Presently pending before the Court is pro se Plaintiff Robert O. Idahosa’s motion for leave to appeal in forma pauperis (“IFP”) (ECF No. 32) from the Court’s November 15, 2021, Order (ECF No. 29) granting Defendant’s Motion to Dismiss (ECF No. 24). For the following reasons, the Court DENIES Plaintiff’s motion (ECF No. 32). 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 establishes the party’s inability to pay fees and costs, the 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 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). This Court’s independent review of the issues addressed in the Court’s order granting Defendant’s Motion to Dismiss demonstrates that Plaintiff’s appeal is frivolous. See Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999), overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000) (explaining that the arguments to be advanced on appeal are often obvious and decisions regarding good faith can be made by looking at the “reasoning of the ruling sought to be appealed” instead of requiring a statement from the plaintiff). The appeal, therefore, is not brought in good faith. Plaintiff has raised no issues with arguable merit. Plaintiff’s motion for leave to appeal IFP (ECF No. 32) is accordingly 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 17th day of December, 2021. S/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA