(PS) Halousek v. Souza ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHEILA HALOUSEK, No. 2:19-cv-00615-KJM-AC 12 Plaintiff, 13 v. ORDER 14 ALAN EARL SOUZA, 15 Defendant. 16 17 On June 12, 2019, this court adopted the magistrate judge’s findings and 18 recommendations and summarily dismissed this action for lack of federal jurisdiction. ECF No. 19 6. Shortly thereafter, plaintiff appealed. ECF No. 8. On July 12, 2019, the Ninth Circuit referred 20 this matter to the district court for the limited purpose of determining whether plaintiff’s in forma 21 pauperis (“IFP”) status should continue through the appeal or whether her IFP status should be 22 revoked because the appeal is frivolous or taken in bad faith. ECF No. 11. That same day, the 23 magistrate judge issued an order performing this task. ECF No. 12. The magistrate judge 24 certified the appeal as taken in bad faith and revoked plaintiff’s IFP status on appeal. Id. at 2. 25 On July 31, 2019, having received the magistrate judge’s order, the Ninth Circuit 26 determined the magistrate judge lacked authority to issue her order and remanded the matter to 27 this court for the limited purpose of deciding plaintiff’s IFP status on appeal. ECF No. 13. In so 28 1 doing, the Circuit explained that “the district court may treat the magistrate judge’s [July] 12, 2 2019 order as a report and recommendation.” Id. 3 Here, as permitted, the court construes the magistrate judge’s July 12, 2019 order, 4 ECF No. 12, as a report and recommendation, and, having reviewed the record and the magistrate 5 judge’s findings therein, the court ADOPTS the magistrate judge’s findings in full. Pursuant to 6 28 U.S.C. § 1915(a)(3), plaintiff’s appeal is not taken in good faith because the issues contained 7 in plaintiff’s underlying complaint have “no arguable basis in fact or law.” O’Loughlin v. Doe, 8 920 F.2d 614, 617 (9th Cir. 1990) (citation omitted). 9 Accordingly: 10 1. Plaintiff’s appeal is not taken in good faith and plaintiff’s in forma pauperis 11 status is therefore revoked; and 12 2. The Clerk of the Court is directed to forward a copy of this order to the Ninth 13 Circuit. 14 IT IS SO ORDERED. 15 DATED: August 9, 2019. 16 17 18 19 20 21 22 23 24 25 26 27 28