Sanders v. Hicks

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILIP SANDERS, No. 1:22-cv-0577 JLT HBK 12 Plaintiff, Appeal No. 24-1413 13 v. ORDER REVOKING IN FORMA PAUPERIS STATUS ON APPEAL 14 ROBERT HICKS and J. LARA, (Doc. 25) 15 Defendants. 16 17 Philip Sanders proceeded pro se and in forma pauperis in this civil rights action pursuant 18 to 42 U.S.C. § 1983. The Court dismissed the action for failure to state a cognizable claim and 19 entered judgment. (Docs. 14, 18.) On March 8, 2024, Plaintiff filed Notice of Appeal, which was 20 processed to the United States Court of Appeals for the Ninth Circuit as Case No. 24-1413. 21 (Docs. 21, 22). 22 The Ninth Circuit referred this matter to the Court for the limited purpose of determining 23 whether in forma pauperis status should continue for this appeal or whether the appeal is 24 frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 25 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where 26 the District Court finds the appeal to be frivolous). An appeal may not be taken in forma 27 pauperis if the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 28 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). 1 Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. 2 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir., cert. 3 denied, 393 U.S. 891 (1968)); Williams v. Marshall, 795 F. Supp. 978, 978-79 (N.D. Cal. 1992). 4 Good faith on appeal is demonstrated by an objective standard of a nonfrivolous issue. Coppedge 5 v. U.S. 369 U.S. 438, 445 (1962). An issue is “frivolous” where it “lacks an arguable basis either 6 in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A “good faith” appeal must 7 seek review of at least one “non-frivolous” issue or claim. Hooker, 302 F.3d at 1092. 8 Plaintiff’s Notice of Appeal does not identify the issues Plaintiff intends to present on 9 appeal, as required under Fed. R. App P. 24(a)(1)(C). (See Doc. 21.) The Notice of Appeal 10 merely quotes from Rule 3 of the Federal Rules of Appellate Procedure and states “Plaintiff so 11 submit[s] notice of appeal.” (Doc. 21 at 1.) Thus, the Court cannot determine whether the issues 12 are nonfrivolous. Though Plaintiff’s filing satisfies the minimum requirements of Rule 3, it does 13 not establish that Plaintiff’s appeal is non-frivolous under Rule 24. See, e.g., Austin v. Kemper 14 Corp., 2022 WL 2276894, at *1 (N.D. Cal. June 23, 2022) (denying a motion to proceed in forma 15 pauperis on appeal for failure to comply with Rule 24(a)(1)(C), because the plaintiff did not 16 identify the arguments he intended to present on appeal); Sanders v. Fitness Int’l LLC, 2024 WL 17 945132, at *1 (D. Ariz. Feb. 7, 2024) (denying IFP status on referral from the circuit court and 18 upon the plaintiff’s motion because “[p]laintiff does not explain which issues he plans to present 19 on appeal”); see also Jimenez-Valero v. Asher, 2016 WL 8116156, at *1 (W.D. Wash. Dec. 21, 20 2016) (“Because [plaintiff] has not explained the basis for his appeal, the Court cannot determine 21 whether his appeal is frivolous), report and recommendation adopted, 2017 WL 384386 (W.D. 22 Wash. Jan. 24, 2017). 23 Moreover, as the Court previously noted, Plaintiff has not disputed the determination that 24 he failed to state a claim, or the determination denying the requested injunctive relief. (See 25 generally Doc. 15.) Rather, Plaintiff asserted that he should have been granted further leave to 26 amend. (Id. at 4-5.) Plaintiff failed to cite any legal authority contrary to the well-settled principle 27 that leave to amend should be denied where doing so would be futile. Plumeau v. Sch. Dist. 40 28 Cnty. Of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where 1 | further amendment would be futile). Indeed, the Court considered the lodged second amended 2 | complaint and found it repeated the same deficient claims. (Doc. 23.) Because Plaintiff failed to 3 | cite any reasoned basis for reconsideration and has failed to cite any basis for his appeal, the 4 | Court finds that Plaintiff's appeal is frivolous and not taken in good faith. Accordingly, the Court 5 | ORDERS: 6 1. The appeal is declared frivolous and not taken in good faith. 7 2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma 8 pauperis in Appeal No. 24-1413, filed March 11, 2024. 9 3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this order serves as 10 notice to the parties and the United States Court of Appeals for the Ninth Circuit 11 of the finding that Plaintiff is not entitled to proceed in forma pauperis for this 12 appeal. 13 4. The Clerk of Court is directed to serve a copy of this order on the parties and the 14 United States Court of Appeals for the Ninth Circuit. 15 5. The Clerk of Court is also directed to provide a copy of this Court’s Order 16 Denying Plaintiff's Motion for Reconsideration (Doc. 23) to Court of Appeals for 17 the Ninth Circuit. 18 19 IT IS SO ORDERED. 29 | Dated: _Mareh 27, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28