Opinion

Johnson v. Morgan (INMATE 4)

Court
District Court, M.D. Alabama
Filed
Jul 31, 2024
Cited by
0 cases
Authority
More cited than 31.1%

The opinion

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MITCHELL BERNARD JOHNSON, )

)

Petitioner, )

) CIVIL ACTION NO.

v. ) 2:23cv560-MHT

) (WO)

PHYLLIS MORGAN, Warden, )

)

Respondent. )

ORDER

This cause is now before the court on the

petitioner's notice of appeal (Doc. 16) and his motion

to proceed on appeal in forma pauperis (Doc. 17).

28 U.S.C. § 1915(a)(3) 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 (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

(per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir.

1981). Applying this standard, this court is of the

opinion that the petitioner's appeal is without a legal

or factual basis for the reasons stated in the

recommendation of the magistrate judge (Doc. 11) 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 petitioner'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)(3), as not taken in

good faith.

DONE, this the 31st day of July, 2024.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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