(PC) Whitsitt v. San Joaquin County Mental Health

Opinion

----oo0oo---- WILLIAM J. WHITSITT, No. 2:22-cv-0356 WBS CKD P Plaintiff, v. ORDER HEALTH, et al., Defendants. ----oo0oo---- After the court adopted the Magistrate Judge’s Findings and Recommendations and dismissed the case, plaintiff appealed. (See Docket Nos. 28, 32, 36.) The Ninth Circuit has now referred the matter back to this 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” under 28 U.S.C. § 1915(a)(3) and Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). (Docket No. 40.) The court continues to agree with the Magistrate nee ne IE I IERIE I ERIN IEE SIE EE OE EO

Judge’s recommendation in her Findings and Recommendations that the Fifth Amended complaint be dismissed without leave to amend, for the reasons discussed by the Magistrate Judge. However, the court notes that the Magistrate Judge’s recommendation of dismissal was based on plaintiff’s failure to state a claim upon which relief can be granted for any of his various claims, and the Magistrate Judge did not find that plaintiff’s claims were frivolous. Overall, while the court finds that dismissal with prejudice was appropriate, it cannot find that plaintiff’s appeal is frivolous or taken in bad faith. Accordingly, the court declines to revoke plaintiff’s IFP status. The Clerk of Court shall promptly notify the Ninth Circuit and the parties of this determination and order. Dated: November 30, 2023 elle A, hh WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE