Teems v. Wingfield, CIVIL ACTION NO. 5:17-CV-171 (MTT)
Decision Date | 03 April 2019 |
Docket Number | CIVIL ACTION NO. 5:17-CV-171 (MTT) |
Parties | JIMMY RAY TEEMS, Plaintiff, v. HUGH V. WINGFIELD, III, et al., Defendants. |
Court | U.S. District Court — Middle District of Georgia |
Plaintiff Jimmy Ray Teems has filed an application to appeal in forma pauperis. Doc. 42. That motion is DENIED.
The Plaintiff seeks to appeal the Court's Order of February 6, 2019 (Doc. 40). Doc. 41. That Order adopted the Magistrate Judge's Recommendation (Doc. 36) to grant in part and deny in part the Defendants' motion to dismiss (Doc. 20), and it denied the Plaintiff's motion for reconsideration (Doc. 26) of the Court's earlier Order (Doc. 19) adopting the Magistrate Judge's Recommendation on preliminary screening (Doc. 8). Doc. 40. The Plaintiff also seeks to appeal the Magistrate Judge's Order granting in part and denying in part the Plaintiff's motion to amend (Doc. 36 at 3). Doc. 41.
Applications to appeal in forma pauperis are governed by 28 U.S.C. § 1915 and Fed. R. App. P. 24. 28 U.S.C. § 1915 provides:
Similarly, Fed. R. App. P. 24(a) provides:
Thus, the Court must make two determinations when faced with an application to proceed in forma pauperis. First, it must determine whether the plaintiff is financially able to pay the filing fee required for an appeal. The Plaintiff's affidavit, in which he states he has no income from any sources, and his trust account statement, which states he has $59.00 of spendable money, adequately demonstrate the Plaintiff's inability to pay the appellate filing fee of $505.00. Docs. 42; 42-1 at 1.
Next, the Court must determine if the plaintiff has satisfied the good faith requirement. "'[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. 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) (citations omitted). "Arguable means capable of being convincingly argued." Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (quotation marks and citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) () (citations omitted). "Indeciding whether an [in forma pauperis] appeal is frivolous, a district court determines whether there is 'a factual and legal basis . . . for the asserted wrong, however inartfully pleaded.'" Sun, 939 F.2d at 925 (citations omitted).
Although the Plaintiff has not submitted a statement of the issues he intends to appeal, as is required under Fed. R. App. P. 24(a)(1)(C), this Court's independent review of the issues addressed in the Report and Recommendation regarding the Defendants' motion to dismiss and Order regarding the Plaintiff's motion to amend (Doc. 36), the Plaintiff's Objection to that Recommendation (Doc. 39), the Court's Order (Doc. 40) adopting the Recommendation and denying reconsideration, the Plaintiff's motion for reconsideration (Doc. 26), and the Court's Order (Doc. 19) adopting the Magistrate Judge's earlier recommendation, demonstrates that the 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) ( ).
In addition to the appeal's substantive frivolity, the appeal may be barred because the Court has not yet entered judgment, and the Order (Doc. 40) adopting the Recommendation and granting in part the motion to dismiss resolves some, but not all, of the Plaintiff's claims. Doc. 40 at 1. An order resolving fewer than all the claims in a lawsuit is not a "final decision" and is not appealable under 28 U.S.C. § 1291. See 28 U.S.C. § 1291; Fed. R. Civ. P. 54(b). Nor is an order denying leave to amend a final decision. See Stile v. Somerset Cty., 2017 WL 3623928, at *1 (1st Cir. July 19, 2017) () (quotation marks and citation omitted); DeNubilo v. United States, 343 F.2d 455, 456-57 (2d Cir. 1965) (). Additionally, the Plaintiff has not argued any basis for an interlocutory...
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