The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
DERRICK LAWAYNE DANIELS, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:23cv517-MHT
) (WO)
CAPTAIN LASTER, et al., )
)
Defendants. )
ORDER
This cause is now before the court on plaintiff's
notice of appeal (Doc. 18), which the court is treating
as a motion to proceed on appeal in forma pauperis.
28 U.S.C. § 1915(a) 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.” 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 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). The court dismissed this case on March 13,
2024, for failure to prosecute by not paying the
initial filing fee in a timely manner. Plaintiff had
30 days from March 13, 2024, to file a notice of
appeal, but he failed to do so. See Fed. R. App. P.
4(a)(1)(A) (“In a civil case, except as provided in
Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of
appeal required by Rule 3 must be filed with the
district clerk within 30 days after entry of the
judgment or order appealed from.”). On November 22,
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2024, plaintiff filed a motion for leave to appeal in
forma pauperis (Doc. 16) but failed to explain why he
failed to appeal earlier. The court denied that motion
in part because it was too late to appeal, which made
his motion for leave to appeal in forma pauperis moot.
Furthermore, plaintiff failed to sign the motion and
affidavit in support of the motion, had the affidavit
notarized, or swear under penalty of perjury that the
information in the affidavit was correct. See Fed. R.
Civ. P. 11(a) (“Every pleading, written motion, and
other paper must be signed ... by a party personally if
the party is unrepresented.”); 28 U.S.C. § 1915(a)(1)
and (2) (setting forth filing requirements, including
affidavit, for prisoners appealing in forma pauperis);
28 U.S.C. § 1746 (allowing the filing of unsworn
declarations under penalty of perjury in place of
notarized affidavits).
***
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Accordingly, it is ORDERED that the plaintiff'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), as not taken in good
faith.
DONE, this the 11th day of February, 2025.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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