The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
PETER J. SMITH, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:24cv221-MHT
) (WO)
KAY IVEY, Three Term )
Alabama Governor, et al., )
)
Defendants. )
ORDER
This cause is now before the court on plaintiff's
notice of appeal (Doc. 10), which the court is treating
as a motion to proceed on appeal in forma pauperis.
28 U.S.C. § 1915(a)(3) 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.” See also F.R.A.P. 24(a)(3)(A) (“A party who
was permitted to proceed in forma pauperis in the
district-court action ... may proceed on appeal in
forma pauperis without further authorization, unless
... the district court--before or after the notice of
appeal is filed--certifies that the appeal 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); 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). Applying this standard, this
court is of the opinion, for the reasons stated in the
recommendation (Doc. 7), 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
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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.
DONE, this the 5th day of July, 2024.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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