(PS) Halousek v. Verizon

Opinion

1 2 3 4 5 6 7 10 11 SHEILA HALOUSEK, No. 2:22-cv-01728-TLN-JDP 12 Plaintiff, 13 v. ORDER 15 Defendant. 16

17 On August 16, 2023, the Ninth Circuit referred the matter to this Court for the limited 18 purpose of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on 19 appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 14 at 1 (citing 28 U.S.C. 20 § 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).) 21 “An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken 22 in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal [IFP] is easily 23 met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review of any issue that is 24 ‘not frivolous.’” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quoting Coppedge v. 25 U.S., 369 U.S. 438 445 (1962)); see also Hooker, 302 F.3d at 1092 (noting that an appeal is taken 26 in “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or 27 claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it 28 1 | lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 2 | other words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces 3 | not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. 4 In the instant case, the magistrate judge found Plaintiff's amended complaint to be lacking 5 | any facts to support a cognizable federal claim. (ECF No. 6.) The Court adopted the magistrate 6 | judge’s findings and recommendations in full and dismissed the case. (ECF No. 9.) Based on the 7 | record before it, the Court cannot conceive of any valid grounds upon which an appeal can be 8 | based. The Court therefore finds that Plaintiffs appeal is frivolous and not taken in good faith. 9 | See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 10 | U.S. at 325. Plaintiff's IFP status on appeal should therefore be revoked. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff's in forma pauperis status on appeal is hereby REVOKED; and 13 2. The Clerk of the Court is directed to serve this Order on the Ninth Circuit Court of 14 Appeals in Case No. 23-16101. 16 | Date: August 17, 2023 17 /) 18 “ Wh / Vhokay 19 Troy L. Nunley ] 0 United States District Judge 21 22 23 24 25 26 27 28