(PS) Dearman v. Olivera

Opinion

RYAN ALAN DEARMAN, No. 2:22-cv-02158-TLN-CKD Plaintiff, v. ORDER ELIZABETH UFKES OLIVERA, et al., Defendants.

On July 19, 2023, the Ninth Circuit referred the matter to this Court for the limited purpose of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 15 at 1 (citing 28 U.S.C. § 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).) “An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal [IFP] is easily met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review of any issue that is ‘not frivolous.’” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quoting Coppedge v. U.S., 369 U.S. 438 445 (1962)); see also Hooker, 302 F.3d at 1092 (noting that an appeal is taken in “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Jd. On May 17, 2023, the magistrate judge issued findings and recommendations, recommending the action be dismissed for failure to state a claim. (ECF No. 6.) The magistrate judge recommended the dismissal be with prejudice because Plaintiff had filed three complaints in the action and was previously advised of the standards for pleading a federal claim. Ud.) The Court considered the filings — including Plaintiffs objections to the findings and recommendations — and adopted in full the findings and recommendations on June 30, 2023. (ECF No. 8.) Based on the record before it, the Court cannot conceive of any valid grounds upon which an appeal can be based. The Court therefore finds that Plaintiffs appeal is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 U.S. at 325. Plaintiff's IFP status on appeal should therefore be revoked. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's in forma pauperis status on appeal is hereby REVOKED; and 2. The Clerk of the Court is directed to serve this Order on the Ninth Circuit Court of Appeals in Case No. 23-16015. Dated: July 21, 2023 \ /) a “ \/ of — ZA Troy L. Nunley } United States District Judge