See 28 U.S.C. § 1915(e): 1

(2) Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the

court determines that--

 (A) the allegation of poverty is untrue; or

 (B) the action or appeal--

 (i) is frivolous or malicious;

 (ii) fails to state a claim on which relief may be granted; or

 (iii) seeks monetary relief against a defendant who is immune from

such relief.

 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANGELA DENISE NAILS, )

)

Plaintiff, )

)

v. ) CASE NO. 1:06-cv-737-WKW

) (WO)

DOTHAN RESCUE MISSION, )

)

Defendants. )

ORDER

This cause is now before the court on a Motion to Proceed in forma pauperis, filed by the

plaintiff on April 26, 2007 (Doc. # 67), and the plaintiff’s Motion to Clarify (Doc. # 68).

Title 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 1

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). “The statute provides that a court ‘may

dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or

malicious.’” Attwood v. Singletary, 105 F.3d 610, 613 (11 Cir. 1997) (citing 28 U.S.C. § 1915(d) th

(1996)). 

Case 1:06-cv-00737-WKW-SRW Document 73 Filed 05/22/2007 Page 1 of 2
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This circuit has defined a frivolous appeal under section 1915(d) as

being one “‘without arguable merit.’” Harris v. Menendez, 817 F.2d

737, 739 (11th Cir.1987)(quoting Watson v. Ault, 525 F.2d 886, 892

(5th Cir.1976)). “‘Arguable means capable of being convincingly

argued.’” Moreland v. Wharton, 899 F.2d 1168, 1170 (11th

Cir.1990) (per curiam) (quoting Menendez, 817 F.2d at 740 n. 5); see

Clark, 915 F.2d at 639 (“A lawsuit [under section 1915(d) ] is

frivolous if the ‘plaintiff's realistic chances of ultimate success are

slight.’” (quoting Moreland, 899 F.2d at 1170)). 

Sun v. Forrester, 939 F.2d 924, 925 (11 Cir. 1991), reh’g denied, 503 U.S. 999 (1992). See also

th

Weeks v. Jones, 100 F.3d 124, 127 (11 Cir. 1996) (stating that “Factual allegations are frivolous for th

purpose of [28 U.S.C.] § 1915(d) when they are ‘clearly baseless;’ legal theories are frivolous when

they are ‘indisputably meritless.’”) (citations omitted).

Applying the foregoing standard, this court is of the opinion that the petitioner’s appeal is

without a legal or factual basis and, accordingly, is frivolous and not taken in good faith. In her

objection (Doc. # 59) to the Magistrate Judge’s Recommendation that the defendant’s Motion for

Summary Judgment be granted, the plaintiff provided no evidence that she was discriminated against

on the basis of disability despite clear orders from the Magistrate to do so. 

Accordingly, it is ORDERED that the petitioner’s motion to proceed on appeal in forma

pauperis (Doc. # 67) is DENIED. 

It is further ORDERED that the Motion to Clarify is GRANTED. The court hereby notifies

the plaintiff that a claim “dismissed with prejudice” cannot be brought again. 

DONE this 22nd day of May, 2007.

 /s/ W. Keith Watkins 

UNITED STATES DISTRICT JUDGE

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