United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.
closed matter comes before the Court on plaintiff Donald
Jackson's Motion to Proceed without Prepayment of Fees
(doc. 59). On August 30, 2018, Jackson filed a Notice of
Appeal (doc. 58) indicating that he is appealing from the
Order and Judgment entered on August 2, 2018, granting
summary judgment in defendants' favor on all claims and
causes of action asserted herein. Jackson now seeks leave to
pursue his appeal in forma pauperis.
general, “[t]o proceed on appeal in forma
pauperis, a litigant must be economically eligible, and
his appeal must not be frivolous.” Jackson v.
Dallas Police Dep't, 811 F.2d 260, 261
(5th Cir. 1986). Jackson satisfies neither
requirement. To satisfy the economic eligibility requirement,
a plaintiff must show “that the litigant, because of
his poverty, is unable to pay for the court fees and costs,
and to support and provide necessities for himself and his
dependents.” Martinez v. Kristi Kleaners,
Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
The court file confirms that Jackson paid the $400 filing fee
to commence this action last year. Nothing in Jackson's
IFP affidavit reflects that his financial conditions have
materially worsened in the interim. He reports income of
$634.00 weekly (or $2, 536 monthly), as well as assets
including a home whose estimated value is $250, 000 and two
automobiles whose combined present value exceeds $22, 000.
These facts are incompatible with a finding of poverty or
indigence for in forma pauperis purposes. Based on
the foregoing, Jackson has not shown that he is unable to pay
the appellate filing fee and still support and provide
necessities for himself and his dependents. He is therefore
ineligible to proceed in forma pauperis on appeal.
Jackson could satisfy the economic eligibility requirement,
“[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.” 28 U.S.C. §
1915(a)(3); see also Busch v. County of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999). An appeal is not taken in
good faith if it is plainly frivolous. See United States
v. Youngblood, 116 F.3d 1113, 1115 (5th Cir.
1997); DeSantis v. United Technologies Corp., 15
F.Supp.2d 1285, 1289 (M.D. Fla. 1998) (appeal is not taken in
good faith when it fails to “seek appellate review of
any issue that is not frivolous”), aff'd,
193 F.3d 522 (11th Cir. 1999); United States
v. Durham, 130 F.Supp. 445 (D.D.C. 1955) (“good
faith” means the existence of a substantial question or
one which has merit and is not frivolous); Sejeck v.
Singer Mfg. Co., 113 F.Supp. 281 (D.N.J. 1953)
(“in good faith” means that points on which
appeal is taken are reasonably arguable); United States
v. Gicinto, 114 F.Supp. 929 (W.D. Mo. 1953) (the
application should be denied if the trial court is of opinion
that the appeal is frivolous, and without merit, and a futile
proceeding); 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).
reasons stated in the August 2 Order, the undersigned
certifies that Jackson's appeal is not
taken in good faith because it is plainly frivolous. Jackson
stated that the only claim he was pursuing in this action was
one of retaliation for engaging in protected speech under the
First Amendment; however, Jackson's own testimony
unequivocally demonstrated that the subject speech was in
accordance with his ordinary job responsibilities, such that
it was beyond the scope of First Amendment protection.
Furthermore, there was no record evidence supporting a
reasonable inference that Jackson's speech implicated a
matter of public concern (even if he had been speaking as a
citizen, rather than an employee, which he was not). Finally,
the summary judgment record was devoid of any evidence that
the purportedly protected speech was a substantial motivating
factor in defendants' decision to terminate his
employment; indeed, the uncontroverted evidence was that the
person who terminated Jackson's employment was unaware of
his protected speech. Given these glaring infirmities of
proof in the summary judgment record, Jackson's appeal of
the August 2 Order granting summary judgment in
defendants' favor is plainly frivolous and not taken in
both economic eligibility and frivolity reasons, then,
plaintiff's Motion to Proceed without Prepayment of Fees
(doc. 59) is denied.
 Jackson was represented by counsel at
all stages of this matter through and including the August 2
Order and Judgment; however, he has filed his Notice of
Appeal and IFP Motion pro se. No motion to withdraw
from the representation has ...