IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANDREW JACKSON SMITH :

AIS # 228252 :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION NO. 07-00268-CG-B 

 : 

TROY KING, et al. :

 :

Defendants. :

 REPORT AND RECOMMENDATION 

This matter is before the Court on Plaintiff Andrew Jackson

Smith’s Motion for Leave to Appeal In Forma Pauperis (Doc. 26).

Smith, an Alabama prisoner proceedings pro se, filed this action

alleging various violations under 42 U.S.C. Section 1983.

Specifically, Plaintiff named numerous Defendants who were

allegedly involved in the criminal proceedings that led to his

conviction for reckless manslaughter on March 17, 2003, and the

imposition of a thirty-year prison sentence. (Doc. 6 at 5).

According to Plaintiff, 

D.A. John Tysons office, in conjunction with

Det. Curtis Graves and the Mobile Police Dept

did conspire to frame the plaintiff; Andrew

Smith, an actual and absolutely innocent

person for the murder of Celeste Phillips,

while refusing to indict David LeNose; whom

all the evidence overwhelmingly pointed to as

the culprit of the crime. The court continues

to facilitate the wrongful incarceration of

the plaintiff.

(Id. at 3). In a Report and Recommendation entered on May 15, 2009

Case 1:07-cv-00268-CG-B Document 28 Filed 04/01/10 Page 1 of 6
2

(Doc. 18), the undersigned recommended that Plaintiff’s action be

dismissed with prejudice prior to service of process pursuant to 28

U.S.C. § 1915 (e)(@)(B)(i) and (ii) because the claims either fail

to state a claim upon which relief can be granted or are frivolous.

The Court determined that Plaintiff’s conspiracy claims were vague

and conclusory and failed to state a claim upon which relief could

be granted. With respect to Plaintiff’s claims against Troy King,

the Attorney General of Alabama, John Tyson, District Attorney for

Mobile County, and Jill Phillips and Ashley Rich, assistant

District Attorneys for Mobile County, the court found that

Plaintiff’s allegations were vague and conclusory and failed to

state a claim. The Court also found that these Defendants were

entitled to absolute prosecutorial immunity. Alternatively, the

undersigned determined that the claims were barred by Heck v.

Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). The undersigned

also determined that Plaintiff’s claims against John Lockett, state

court judge, also failed to state a claim because he was entitled

to absolute judicial immunity for acts undertaken in his judicial

capacity. The Court also found that Plaintiff’s claims against

Phillip Garrett, Police Chief for the City of Mobile, Curtis

Graves, detective with the City of Mobile Police Department, and

Katrina Brewer, supervisor for Mobile Communication District 911,

were vague and conclusory, and failed to state a claim, and in the

alternative, the claims are barred by the Heck decision. The

Case 1:07-cv-00268-CG-B Document 28 Filed 04/01/10 Page 2 of 6
3

undersigned likewise found that Plaintiffs claims against Kathleen

Enstice, a pathologist, and Faron Brewer, a DNA expert, failed to

state a claim, and in the alternative, they were barred by the Heck

decision and the statute of limitations. Additionally, the Court

determined that Plaintiff’s claims against April Ryan, a baby

sitter, Jennifer Levy, a paramedic, Leroy Tasone, a security guard,

Dr. Janovski, a physician in private practice, Edward Blount, an

attorney in private practice, and John White, an attorney in

private practice, also failed to state a claim because Plaintiff’s

allegations were vague and conclusory and did not allege that these

individuals were acting under color of state law. Accordingly, the

undersigned recommended that Plaintiff’s action be dismissed with

prejudice prior to service of process pursuant to 28 U.S.C. §

1915(e)(2)(B)(i) and (ii) because the claims either fail to state

a claim upon relief can be granted or are frivolous. S e e

generally Back v. Kitrell, CA 07-0638-KD-M, 2008 WL 5377723, at

*11-12 (S.D. Ala. Dec. 16, 2008) (unpublished) (dismissing a § 1983

action based on the defendants’ immunity and, then in the

alternative, on the Heck bar, and then, on the statute-oflimitations bar). 

Plaintiff filed no objections to the Report and

Recommendation, and on June 9, 2009, District Judge Callie Granade

entered an Order adopting the Report and Recommendation, and a

Judgment dismissing Plaintiff’s Complaint. (Docs. 20, 21). Nearly

Case 1:07-cv-00268-CG-B Document 28 Filed 04/01/10 Page 3 of 6
4

eight months later, in February 2010, Plaintiff filed a Notice of

Appeal, and the instant Motion for Leave to Appeal In Forma

Pauperis (Docs. 23, 26).

An appeal may not be taken in forma pauperis if the trial

court certifies, either before or after the notice of appeal is

filed, that the appeal is not taken in good faith. 28 U.S.C.

1915(a)(3); Fed. R. App. P. 24(a)(3). A party demonstrates good

faith by seeking appellate review of any issue that is not

frivolous when judged under an objective standard. See Coppedge v.

United States, 369 U.S. 438, 445, 82 S. Ct. 917, 8 L. Ed. 2d 21

(1962); Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla.

1999); United States v. Wilson, 707 F. Supp. 1582, 1583 (M.D. Ga.

1989), aff'd, 896 F.2d 558 (11th Cir. 1990). An issue is frivolous

when it appears that the legal theories are “indisputably

meritless.” See Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct.

1827, 104 L. Ed. 2d 338 (1989); Carroll v. Gross, 984 F.2d 392, 393

(11th Cir. 1993). Or, stated another way, an in forma pauperis

action is frivolous, and thus not brought in good faith, if it is

“without arguable merit either in law or fact.” Napier v.

Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); Bilal v. Driver, 251

F.3d 1346, 1349 (11th Cir. 2001). “Arguable means capable of being

convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th

Cir. 1991) (per curiam).

As a preliminary matter, the undersigned finds that

Case 1:07-cv-00268-CG-B Document 28 Filed 04/01/10 Page 4 of 6
5

Plaintiff’s appeal is untimely. Federal Rule of Appellate

Procedure 4(a) provides that a notice of appeal must be filed

within thirty days after the judgment. Fed. R. App. P. 4(a)(1)(A).

The district court, however, may extend the time to file a notice

of appeal in a civil case if: (1) a party moves for an extension

within 60 days of the judgment to be appealed; and (2) a party

“shows excusable neglect or good cause.” Fed. R. App. P.

4(a)(5)(A)(ii); Cordell v. Pacific Indem. Co., 335 Fed. Appx. 956,

2009 U.S. App. Lexis 15117 (llth Cir. 2009). A review of the docket

reflects that Plaintiff’s Notice of Appeal was filed nearly eight

months after the Court’s Order adopting the Report and

Recommendation and the Judgment were entered in this case.

Moreover, Plaintiff did not seek an extension of time to file his

Notice of Appeal; thus, his appeal is untimely. 

The undersigned further finds, for the reasons set forth in

the Report and Recommendation (Doc. 18), that the issues Plaintiff

seeks to raise on appeal, are “without arguable merit either in law

or fact,” and therefore are not brought in good faith.

Accordingly, the undersigned recommends that Petitioner’s Motion

for Leave to Appeal In Forma Pauperis (Doc. 26) be denied. 

DONE this 1st day of April, 2010.

 /S/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:07-cv-00268-CG-B Document 28 Filed 04/01/10 Page 5 of 6
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 14

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 ten 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.

DONE this the 1st day of April, 2010.

s/Sonja F. Bivins 

UNITED STATES MAGISTRATE JUDGE

Case 1:07-cv-00268-CG-B Document 28 Filed 04/01/10 Page 6 of 6