Wyres v. Zhang

Opinion

TROY WYRES, Case No.: 19-CV-2050 TWR (KSC)

Plaintiff, ORDER ON REFERRAL NOTICE v. REGARDING IN FORMA PAUPERIS STATUS ON APPEAL RONALD ZHANG, and CALIFORNIA

DEPARTMENT OF CORRECTIONS (ECF No. 66) AND REHABILITATION, Defendants.

On March 29, 2022, the Court dismissed with prejudice Plaintiff Troy Wyres’s First Amended Complaint against Defendant Dr. Ronald Zhang. (See generally ECF No. 52.) Judgment was entered the same day. (See generally ECF No. 53.) Plaintiff moved for reconsideration on May 9, 2022, (see generally ECF No. 56), and appealed to the United States Court of Appeals for the Ninth Circuit on September 20, 2022. (See generally ECF No. 62.) The Court denied Plaintiff’s motion for reconsideration on September 28, 2022. (See generally ECF No. 65.) On May 9, 2022, the Ninth Circuit referred the matter to the 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 ECF No. 66 (citing 28 U.S.C. § 1915(a)(3); Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).) “In the absence of some evident improper motive, the applicant’s good faith is established by the presentation of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674 (1958). An action is frivolous “where it lacks an arguable basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are those “based on an indisputably meritless legal theory.” See id. at 327. Factually frivolous claims are those premised on “clearly baseless” factual contentions, such as claims “describing fantastic or delusional scenarios.” See id. at 327-28. Here, the Court dismissed with prejudice Plaintiffs claims for deliberate indifference to his serious medical needs on the grounds that his insistence on receiving morphine for pain management was “‘a mere difference of medical opinion’ as to /treatment,” (see ECF No. 52 at 6 (quoting ECF No. 46 at 8-9), “which is ‘insufficient, as a matter of law, to establish deliberate indifference.’” (See id. (quoting Toguchi v. Chung, }/391 F.3d 1051, 1058 (9th Cir. 2004)).) Although the Court stands by that decision, the Court cannot conclude that this appeal is taken in bad faith or “based on an indisputably }meritless legal theory.” See Neitzke, 490 U.S. at 327. Because the Court finds no reason deny Plaintiff the ability to continue to proceed in forma pauperis on appeal, the Court CERTIFIES that this appeal is not frivolous or taken in bad faith. The Clerk of the Court SHALL NOTIFY the Court of Appeals of this order. See Fed. R. App. P. 24(a)(4). Dated: November 14, 2022 — [ odd (2 (re Honorable Todd W. Robinson United States District Judge