Thomas v. N.C. Mtual Life Ins. Co., CIVIL ACTION NO. 1:18-cv-445-TFM-N

• Decision Date: 27 February 2020
• Docket Number: CIVIL ACTION NO. 1:18-cv-445-TFM-N
• Parties: NOEL THOMAS Plaintiff, v. NORTH CAROLINA MTUAL LIFE INSURANCE COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

NOEL THOMAS Plaintiff, v. NORTH CAROLINA MTUAL LIFE INSURANCE COMPANY, et al., Defendants.

CIVIL ACTION NO. 1:18-cv-445-TFM-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

February 27, 2020

ORDER

Pending before the Court are Plaintiff's Motion for Permission to Appeal In Forma Pauperis (Doc. 17, filed 1/24/20) and his Motion Requesting Appointment of Counsel (Doc. 18, filed 1/24/20).

28 U.S.C. § 1915(a) provides that, "[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." 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, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962), or "has no substantive merit." United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);¹ see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981). Stated differently:

This circuit has defined a frivolous appeal under section 1915(d) as being one "without arguable merit." Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987) (quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976)). "Arguable means capable of being convincingly argued." Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir.1990) (per curiam) (quoting Menendez, 817 F.2d at 740 n.5); see Clark,

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915 F.2d at 639 ("A lawsuit [under section 1915(d)] is frivolous if the 'plaintiff's realistic chances of ultimate success are slight.'" (quoting Moreland, 899 F.2d at 1170)).

Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991); see also Weeks v. Jones, 100 F.3d 124, 127 (11th Cir. 1996) (stating that "[f]actual allegations are frivolous for purpose of [28 U.S.C.] § 1915(d) when they are 'clearly baseless;' legal theories are frivolous when they are 'indisputably meritless.'") (citations omitted).

This Court finds that this appeal has no substantive merit. Accordingly, it is ORDERED Plaintiff's motion for leave to appeal in forma pauperis (Doc. 17) and the motion for appointment of counsel (Doc. 18) are DENIED, and the appeal in this cause is certified, pursuant to 28 U.S.C. § 1915(a), as not taken in good faith. Of course, nothing in this ruling precludes Plaintiff from asking the Eleventh Circuit Court of Appeals for leave to proceed with his appeal in forma pauperis or from proceeding with the appeal by paying the filing fee for the Eleventh Circuit.

DONE and ORDERED this the 27th day of February 2020.

/s/Terry F. Moorer

TERRY F. MOORER

UNITED STATES DISTRICT JUDGE

1. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit that were handed down prior to the close of business on September 30, 1981.