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Case 1:08-cv-01971-WSD Document 34 Filed 12/23/2008 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JAMES B. STEGEMAN and


JANET D. MCDONALD,
Plaintiffs,
v. 1:08-cv-1971-WSD
SUPERIOR COURT STONE
MOUNTAIN JUDICIAL CIRCUIT,
et al.,
Defendants.

ORDER

The matter before the Court is Plaintiffs’ motion to proceed in forma

pauperis on appeal [30].

On August 26, 2008, the Court dismissed this action on grounds of the

Younger abstention doctrine [21]. Plaintiffs filed a motion for reconsideration of

the Court’s dismissal, which was denied on September 26, 2008 [28].

On October 24, 2008, Plaintiffs filed a Notice of Appeal of the Court’s

dismissal orders [29]. Plaintiffs did not pay the appeal fee and docketing fees. On

October 24, 2008, Plaintiffs filed a motion to proceed on appeal in forma pauperis.
Case 1:08-cv-01971-WSD Document 34 Filed 12/23/2008 Page 2 of 3

A court is authorized to allow an appeal to be prosecuted in forma pauperis

by a showing that the person seeking in forma pauperis status is “unable to pay”

the fees associated with the proceeding or to give security for such fees. 28 U.S.C.

§ 1915(a)(1). A petitioner’s right to appeal in forma pauperis is limited by Section

1915(a)(3), which provides, “[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.” Id. § 1915(a)(3);

see also Fed. R. App. P. 24(a)(3) (“A party who was permitted to proceed in forma

pauperis in the district-court action . . . may proceed on appeal in forma pauperis

without further authorization, unless: (A) the district court . . . certifies that the

appeal is not taken in good faith . . . .”). An appeal is not taken in good faith if it is

frivolous. See Busch v. County of Volusia, 189 F.R.D. 687, 692-93 (M.D. Fla.

1999); DeSantis v. United Techs. Corp., 15 F. Supp. 2d 1285, 1289 (M.D. Fla.

1998), aff’d 193 F.3d 522 (11th Cir. 1999); see generally Napier v. Preslicka, 314

F.3d 528, 531 (11th Cir. 2002) (holding action is frivolous under § 1915 if it is

without arguable merit in law or in fact).

Plaintiff Stegeman filed an affidavit in support of his motion to proceed in

forma pauperis on appeal which states that his monthly income comes solely from

Social Security disability payments and his monthly expenditures exceed his

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Case 1:08-cv-01971-WSD Document 34 Filed 12/23/2008 Page 3 of 3

income [30]. Plaintiff accordingly is unable to pay for his appeal. The Court also

finds that Plaintiffs’ appeal is not frivolous for the purposes of appellate review.

For the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiffs’ Motion to Proceed In Forma

Pauperis on appeal [30] is GRANTED.

SO ORDERED this 23rd day of December 2008.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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