Johnson v. Morgan (INMATE 4)

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