McIntosh v. Goings ( 2022 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JAMES MCINTOSH CIVIL ACTION VERSUS No. 21-1719 ROBERT GOINGS, ET AL. SECTION I ORDER Before the Court is defendant James McIntosh’s (“McIntosh”) motion1 for leave to proceed in forma pauperis (“IFP”) on appeal. I. On April 11, 2022, this Court issued an order and reasons granting in part the Government’s motion for summary judgment “to the extent that McIntosh’s § 1983 claim against [defendants Robert] Goings, [Jonathan] Stringer, [Jacob] Waskom, and [Mickey] Dillon is barred by Heck v. Humphrey, 512 U.S. 477 (1994) . . . . ”2 This Court further clarified that “McIntosh’s § 1983 claim is dismissed with prejudice to its being asserted again until the Heck conditions are met.”3 McIntosh subsequently filed a motion for leave to proceed IFP on appeal,4 and the government filed a response memorandum in opposition to McIntosh’s motion.5 1 R. Doc. No. 79. 2 R. Doc. No. 67, at 1. 3 Id. This Court also dismissed without prejudice McIntosh’s state law claims “asserting negligence and respondeat superior . . . to their being timely asserted in state court.” Id. at 2. 4 R. Doc. No. 79. 5 R. Doc. No. 85. II. Under Rule 24(a)(1) of the Federal Rules of Appellate Procedure, “a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court.” Fed. R. App. P. 24(a)(1). The district court has statutory authority to deny such an appeal where the court determines, and certifies in writing, that the appeal is “not taken in good faith.” 28 U.S.C.A. § 1915(3). The Fifth Circuit has held that “‘[g]ood faith’ is demonstrated when a party seeks appellate review of any issue ‘not frivolous.’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (quoting Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)). An appeal is not frivolous when it “involves legal points arguable on their merits . . . .” Harvey v. Paxton, 853 F. App'x 999, 1000 (5th Cir. 2021) (quoting Howard, 707 F.2d at) (internal quotations omitted). Significantly, “[d]istrict courts are vested with especially broad discretion in making the determination of whether an IFP proceeding is frivolous.” Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). As McIntosh has not demonstrated in his appeal that the Heck conditions have been met, his appeal does not involve any legal points that are arguable on their merits, and it is therefore frivolous and not taken in good faith. III. Consequently, pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24(a)(3) of the Federal Rules of Appellate Procedure, the Court certifies that McIntosh’s appeal is not taken in good faith. Accordingly, IT IS ORDERED that the McIntosh’s application for leave to proceed in forma pauperis on appeal is DENIED. New Orleans, Louisiana, July 13, 2022. A LANCE M. AFRICK UNITED STATES DISTRICT JUDGE