Kaneakua v. Derr

Opinion

IIN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I

ELIJAH M. KANEAKUA, Case No. 22-cv-00201-DKW-WRP

Plaintiff, ORDER REVOKING IN FORMA PAUPERIS STATUS FOR APPEAL vs.

ESTELA DERR and NATHAN KWON,

Defendants.

On July 31, 2023, this Court received a Referral Notice in this case from the Ninth Circuit Court of Appeals. Dkt. No. 41. In pertinent part, the Referral Notice states as follows: “This matter is referred to the district court for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith.” Id.; see also Dkt. No. 6 (previously granting in forma pauperis status). Having considered the foregoing referred matter, the Court REVOKES Plaintiff Elijah M. Kaneakua’s in forma pauperis status for purposes of appeal because the appeal is frivolous. As explained in the Court’s March 16, 2023 and July 13, 2023 Orders, Kaneakua’s damages claims were dismissed with prejudice because they are not cognizable under Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971), and Egbert v. Boule, 142 S. Ct. 1793 (2022), and his claim for an injunction was dismissed as moot because Kaneakua

was released from BOP custody, rendering the Court unable to fashion a prospective remedy directing the BOP to send him for an outside medical consultation. See generally Dkt. Nos. 29, 35. Moreover, Kaneakua did not bother to file an opposition to either of the BOP’s relevant motions to dismiss, see Dkt. No. 29 at 4; Dkt. No. 35 at 2-3, thereby failing to take advantage of the opportunity he had to explain why dismissal was not appropriate. Under these circumstances, the Court finds that an appeal has no arguable basis in law or fact and, thus, is frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (explaining that a matter is frivolous if it “lacks an arguable basis either in law or in fact’). The Clerk is directed to send a copy of this Order to Kaneakua and to the Ninth Circuit Court of Appeals. See Fed. R. App. P. 24(a)(4). IT IS SO ORDERED. Dated: August 7, 2023 at Honolulu, Hawai‘.

Es Derrick K. Watson en Chief United States District Judge

Elijah M. Kaneakua vs. Estela Derr, et al.; Civil No. 22-00201 DKW-WRP; ORDER REVOKING IN FORMA PAUPERIS STATUS FOR APPEAL