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Gaither v. Ala. Department of Corrections

United States District Court, M.D. Alabama, Northern Division

June 23, 2014

ABDUL GAITHER, Plaintiff,
v.
ALA. DEPARTMENT OF CORRECTIONS, et al., Defendants.

ORDER

MYRON H. THOMPSON, District Judge.

This cause is now before the court on plaintiff's notice of appeal (doc. no. 34), which the court is treating as a motion to proceed on appeal in forma pauperis.

28 U.S.C. § 1915(a) provides that, "An 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 (5th Cir. Unit B May 15, 1981) (per curiam), cert. denied, 454 U.S. 903 (1981); see also Rudolph v. Allen , 666 F.2d 519, 520 (11th Cir. 1982) (per curiam), cert. denied, 457 U.S. 1122 (1982); Morris v. Ross , 663 F.2d 1032 (11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982). Applying this standard, this court is of the opinion, for the reasons stated in the recommendation of the magistrate judge, that the plaintiff'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 plaintiff'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), as not taken in good faith.


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