MCGILLVARY v. HARTLEY et al

1
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CALEB L. MCGILLVARY, 	:
:
Plaintiff, 	:
: 	CIVIL ACTION
v. 	: 	No. 5:24-CV-81 (CAR)
:
GREG HARTLEY, et al.; 	:
:
Defendants. 	:
___________________________________ :
ORDER ON MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
Before the Court is pro se Plaintiff Caleb L. McGillvary’s Motion for Leave to
Appeal In Forma Pauperis (“IFP”). As explained below, Plaintiff’s Motion [Doc. 75] is
GRANTED.
On September 30, 2025, this Court granted Defendants’ Motion for Judgment on
the Pleadings,1 dismissed Plaintiff’s Amended Complaint against Defendants without
leave to amend, and entered Judgment in favor of Defendants on October 1, 2025.2
Plaintiff filed a Notice of Appeal to the Eleventh Circuit Court of Appeals and now seeks
to appeal IFP.
1 The Court also found as moot Plaintiff’s Motion for Issuance of Subpoena and Plaintiff’s
Motions to extend time for discovery; and denied Plaintiff’s Motion under Rules 12(e) and 12(f).
[Doc. 72].
2 Judgment [Doc. 73].
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2
28 U.S.C. § 1915(a)(3) sets forth the standard for appealing IFP: “An appeal may
not be taken in forma pauperis if the trial court certifies in writing that it is not taken in
good faith.” “[G]ood faith’ . . . must be judged by an objective standard.” 3 A petitioner
demonstrates good faith when she seeks review of a non-frivolous issue.4 An issue “is
frivolous if it is ‘without arguable merit either in law or fact.’”5 “Arguable means being
capable of being convincingly argued.”6 “In deciding whether an [in forma pauperis]
appeal is frivolous, a district court determines whether there is ‘a factual and legal basis
. . . for the asserted wrong, however inartfully pleaded.’”7 If the claim is arguable, but
“ultimately will be unsuccessful,” the claim should survive a frivolity review.8
Plaintiff is currently incarcerated in New Jersey State Prison. This Court granted
Plaintiff’s motion to proceed IFP in this case,9 and the Court is persuaded that he is unable
to pay the costs and fees associated with this appeal. Moreover, while the Court believes
Plaintiff’s appeal ultimately will be unsuccessful, it is not “without arguable merit in
either law or fact.”10 Thus, the Court GRANTS Plaintiff’s Motion for Leave to Appeal IFP
[Doc. 75].
3 Coppedge v. United States, 369 U.S. 438, 445 (1962).
4 Id.; Morris v. Ross, 664 F.2d 1032, 1033 (11th Cir. 1981).
5 Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
6 Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (internal quotation marks and citations
omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).
7 Sun, 939 F.2d at 925 (citations omitted).
8 Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d 512, 515 (11th Cir. 1991).
9 Order Granting Motion to Leave to Proceed IFP [Doc. 7].
10 Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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SO ORDERED, this 18th day of November, 2025.
S/ C. Ashley Royal 	______________
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
Case 5:24-cv-00081-CAR Document 78 Filed 11/18/25 Page 3 of 3