Sivak v. Nye

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

LACEY SIVAK, Case No. 1:21-cv-00278-MDH Plaintiff, Appeal No. 21-35760

DAVID NYE, ORDER REVOKING IN FORMA PAUPERIS STATUS Defendant.

ORDER By notice entered September 20, 2021, the United States Court of Appeals for the Ninth Circuit referred this matter 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. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the District Court finds the appeal to be frivolous). Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir., cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D. Cal. 1992). If a plaintiff with in forma pauperis status brings a case without arguable substance in law and fact, the court may declare the case frivolous. Franklin, 745 F.2d at 1227. Here, Plaintiff is appealing the Court’s denial of Plaintiff's motion for preliminary injunction.

Plaintiff moved the Court to enjoin parties not associated with this case and bearing no apparent relationship to the named Defendant. Accordingly, an appeal of that decision would be frivolous, and IFP status should not continue on appeal. IT IS HEREBY ORDERED that: 1. The appeal is declared frivolous and not taken in good faith; 2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis in Appeal No. 21-35760, filed September 3, 2021;

3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this Order serves as notice to the parties and the United States Court of Appeals for the Ninth Circuit of the finding that Plaintiff is not entitled to proceed in forma pauperis for this appeal; and 4. The Clerk of the Court is directed to serve a copy of this Order on Plaintiff and the United States Court of Appeals for the Ninth Circuit.

IT IS SO ORDERED. Dated: September 21, 2021 /s/ Douglas Harpool DOUGLAS HARPOOL United States District Judge