Opinion
CIVIL ACTION NO. 5:18-CV-456 (MTT)
02-04-2020
DEBRA HINES, Plaintiff, v. Sergeant FABRON ROBERTS, Defendant.
ORDER
Plaintiff Debra Hines has moved for leave to appeal in forma pauperis the Court's order (Doc. 55) granting Melvin Butts, Fabron Roberts, and Miguel Stubbs' motion to partially dismiss (Doc. 21). Doc. 63. Hines brought 42 U.S.C. § 1983 claims against the Defendants, and her motion to proceed IFP was granted. Docs. 2; 6; 10; 11; 12; 18; 28; 30; 45. Her complaint was partially dismissed. Docs. 45; 55. Following the partial dismissal, Hines filed a notice of appeal and the present motion. Docs. 60; 63.
Although indigent, Hines has no absolute right to appeal IFP, and her ability to appeal IFP is limited by 28 U.S.C. §1915(a)(3). Section 1915(a)(3) states 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." An appeal that is frivolous is not taken in good faith. Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (holding that an action is frivolous for § 1915 purposes if it is without arguable merit either in law or in fact); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (holding that a case is frivolous for IFP purposes if, at any stage of the proceedings, it appears the plaintiff "has little or no chance of success").
After reviewing the motion and the order Hines appeals, the Court concludes the appeal is not taken in good faith, that it is plainly frivolous, and that Hines has little or no chance of success. Her complaint was partially dismissed because Hines cannot recover any official capacity damages under § 1983, and she failed to exhaust her administrative remedies pursuant to 42 U.S.C. § 1997e(a). Docs. 45; 55. Furthermore, the Court noted in that order Hines' numerous attempts to mislead the Court. Doc. 55 at 4 n.3 (citations omitted). Finally, Hines has failed to identify any colorable basis for appeal or for concluding that the Court's order was made in error, and the Court has been unable to discern any such basis. See generally Doc. 63. Hines' appeal is thus frivolous, and she is ineligible for IFP status pursuant to § 1915(a)(3). Accordingly, Hines' motion (Doc. 63) is DENIED.
SO ORDERED, this 4th day of February, 2020.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT