IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

CHRISTOPHER LENARD PUGH, ) 

) 

Plaintiff, ) 

) 

v. ) CIVIL ACTON NO. 09-0507-WS-N 

) 

WARDEN KENNETH JONES, et al., ) 

) 

Respondents. ) 

 REPORT AND RECOMMENDATION

 Plaintiff has filed a letter, which the court deems to be a Motion for Leave to Appeal In 

Forma Pauperis (doc. 39), from the dismissal without prejudice of his petition pursuant to 28 

U.S.C. § 2254. The court dismissed (doc. 26) his petitioner because he had failed to exhaust his 

state remedies; the court held that a Certificate of Appealability was unavailable. 

An appeal may not be taken in forma pauperis if the trial court certifies in writing that the 

appeal is not taken in good faith. 28 U.S.C. ' 1915(a)(3); see Fed. R.App. P. 24(a)(3)(A); Lee v. 

Clinton, 209 F.3d 1025, 1026 (7th Cir.2000) (concluding that Agood faith@ is Aan objective 

concept@ and that Anot taken in good faith@ is Aa synonym for frivolous@); DeSantis v. United 

Techs. Corp., 15 F.Supp.2d 1285, 1288-89 (M.D.Fla.1998) (stating that good faith Amust be 

judged by an objective, not a subjective, standard@ and that an appellant Ademonstrates good faith 

when he seeks appellate review of any issue that is not frivolous@). An appeal filed in forma 

pauperis is frivolous if Ait appears that the Plaintiff has little to no chance of success,@ meaning 

that the Afactual allegations are clearly baseless or that the legal theories are indisputably 

meritless.@ Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.1993). 

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 As stated in the Report and Recommendation (doc. 24) adopted by the court, “[t]he face 

of Pugh’s complaint clearly establishes that the claims presented in his habeas petition have not 

been fully exhausted in the state courts.” His appeal is not taken in good faith, and he is 

therefore not entitled to appeal this decision in forma pauperis. 

 Accordingly, it is RECOMMENDED that petitioner’s Motion to Appeal In Forma 

Pauperis be DENIED. 

 The attached sheet contains important information regarding this report and 

recommendation. 

DONE this the 22nd day of June, 2010. 

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE 

 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS 

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT 

1. Objection. Any party who objects to this recommendation or anything in it must, within 

[fourteen] days of the date of service of this document, file specific written objections with the 

clerk of court. Failure to do so will bar a de novo determination by the district judge of anything 

in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate 

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.1988). The 

procedure for challenging the findings and recommendations of the magistrate judge is set out in 

more detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that: 

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by 

filing a “Statement of Objection to Magistrate Judge's Recommendation” within 

[fourteen] days after being served with a copy of the recommendation, unless a 

different time is established by order. The statement of objection shall specify 

those portions of the recommendation to which objection is made and the basis 

for the objection. The objecting party shall submit to the district judge, at the time 

of filing the objection, a brief setting forth the party's arguments that the 

magistrate judge's recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief 

submitted to the magistrate judge, although a copy of the original brief may be 

submitted or referred to and incorporated into the brief in support of the objection. 

Failure to submit a brief in support of the objection may be deemed an 

abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the 

district judge's order or judgment can be appealed. 

2. Opposing party's response to the objection. Any opposing party may submit a brief opposing 

the objection within ten (10) days of being served with a copy of the statement of objection. 

Fed.R.Civ.P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and 

Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action 

are adequate for purposes of review. Any party planning to object to this recommendation, but 

unable to pay the fee for a transcript, is advised that a judicial determination that transcription is 

necessary is required before the United States will pay the cost of the transcript. 

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE 

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