United States District Court, M.D. Florida, Ocala Division
JOHN K. FORT, Judgment Creditor,
ANTHONY J. CILWA and CHRISTOPHER CILWA, Judgment Debtors.
REPORT AND RECOMMENDATION 
R. LAMMENS UNITED STATES MAGISTRATE JUDGE
referral, this case is before the Court for consideration of
judgment debtor Anthony J. Cilwa's pro se motion
requesting to proceed on appeal in forma pauperis.
(Doc. 20). For the reasons explained below, the undersigned
submits that the motion is due to be denied.
matter involves the registration of a foreign judgment
against judgment debtors, Anthony J. Cilwa and Christopher
Cilwa. (Doc. 1). Pursuant to an order by the United States
Bankruptcy Court, District of South Carolina, judgment
creditor John K. Fort is entitled to the turnover of any
interest Anthony J. Cilwa holds in property located at 4920
Long Meadow Drive in Leesburg, Florida. (Doc. 1-1). Further,
pursuant to the Certification of Judgment for Registration in
Another District, the order of the bankruptcy court was
affirmed by mandate of the United States Court of Appeals for
the Fourth Circuit. (Doc. 1). And recently, the District
Judge observed that the United States Supreme Court denied
Mr. Cilwa's request for an appeal of the bankruptcy case.
Accordingly, the stay was lifted on the execution of judgment
in this matter. (Doc. 31).
Federal Rule of Appellate Procedure 24, a motion to proceed
in forma pauperis on appeal must be filed in the
district court and must have an attached affidavit that (1)
shows the party's inability to pay, (2) claims an
entitlement to redress, and (3) states the issues that the
party intends to present on appeal. Fed. R. App. P. 24(a)(1).
An individual may be allowed to proceed in forma
pauperis (that is, without the payment of the filing
fees) if he or she declares in an affidavit that he or she
“is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1).
a plaintiff is permitted to proceed in forma
pauperis on appeal, however, the Court is obligated to
ensure the appeal is being taken in “good faith.”
28 U.S.C. § 1915(a)(3). “Good faith is
demonstrated by seeking appellate review of any issue that is
not frivolous when judged under an objective standard.”
United States v. Terry, No. 8:97-CR-273-T-23TBM,
2016 WL 406863, at *2, n.1 (M.D. Fla. Jan. 6, 2016),
report and recommendation adopted, No.
8:97-CR-273-T-23TBM, 2016 WL 398160 (M.D. Fla. Feb. 2, 2016)
(citing Coppedge v. United States, 369 U.S. 438, 445
(1962)). “An issue is frivolous if it is without
arguable merit either in law or fact.” Miller v.
City of Atl. Beach, No. 3:15-CV-209-J-34PDB, 2015 WL
7731472, at *5 (M.D. Fla. Nov. 4, 2015), report and
recommendation adopted, No. 3:15-CV-209-J-34PDB, 2015 WL
7721278 (M.D. Fla. Nov. 30, 2015). “On the other hand,
where an issue or claim is arguable, but ultimately will be
unsuccessful, it should be allowed to proceed.”
Williams v. Davey Tree Expert Co., No.
8:10-CV-2303-T-30TBM, 2011 WL 6314207, at *2 (M.D. Fla. Nov.
30, 2011), report and recommendation adopted, No.
8:10-CV-2303-T-30TBM, 2011 WL 6314202 (M.D. Fla. Dec. 16,
2011) (citing Cofield v. Alabama Pub. Serv.
Comm'n, 936 F.2d 512, 515 (11th Cir. 1991)).
Mr. Cilwa apparently seeks to pursue another appeal in an
attempt to forestall the execution of the judgment against
him. As a preliminary matter, the undersigned notes that his
motion to appeal in forma pauperis is due to be
denied for failure to comply with the requirements of Rule 24
of the Federal Rules of Appellate Procedure. Mr. Cilwa's
motion lacks the required affidavit showing his entitlement
to redress and a statement of the issues that he intends to
present on appeal. And, even if the Court were to construe
his other filings as statements of the issues he intends to
present, his motion fails because it is not taken in good
not Mr. Cilwa's first attempt to appeal this matter. As
the docket reflects, he has already unsuccessfully challenged
the subject judgment before both the United States Court of
Appeals for the Fourth Circuit and the United States Supreme
Court. The issues raised by Mr. Cilwa are frivolous, as they
have already been fully litigated. As the District Judge
observed, there is no further reason to stay execution of the
judgment in this case. (Doc. 31). Thus, this case presents a
quintessential example of a frivolous claim that will not
survive scrutiny under § 1915.
reasons stated above, it is respectfully recommended that
Plaintiffs Motion to Appeal in Forma Pauperis (Doc.
20) be denied.