(PC) Smith v. Listen ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY XAVIER SMITH, No. 2:18-CV-03198-MCE-DB 12 Plaintiff, 13 v. ORDER 14 LISTEN, et al., 15 Defendants. 16 17 On October 30, 2019, the Court dismissed this action for failure to prosecute and 18 failure to comply with the Court orders. (ECF No. 30.) On November 13, 2019, Plaintiff, 19 who had proceeded without counsel and in forma pauperis in the district court, filed a 20 notice of appeal. (ECF No. 32.) Thereafter, on November 21, 2019, the Ninth Circuit 21 Court of Appeals referred this matter to the district court for the limited purpose of 22 determining whether in forma pauperis status should continue for the appeal, or whether 23 the appeal is frivolous or taken in bad faith. (ECF No. 35.) 24 “An appeal may not be taken in forma pauperis if the trial court certifies in writing 25 that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3); see also Hooker v. American 26 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status 27 appropriate where district court finds the appeal to be frivolous). The good faith 28 standard under 28 U.S.C. § 1915 is an objective one. Coppedge v. United States, 1 | 369 U.S. 438, 445 (1962). A plaintiff satisfies the “good faith” requirement if he or she 2 || seeks review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 3 | (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445). 4 For the reasons stated in the findings and recommendations (see ECF No. 28), 5 || adopted by the district judge on October 30, 2019 (ECF No. 30), the Court finds that the 6 || instant appeal is frivolous. The Court thus certifies that Plaintiff's appeal is not taken in 7 | good faith and concludes that Plaintiff's in forma pauperis status should not continue for 8 || purposes of the appeal. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff's in forma pauperis status is REVOKED. 11 2. The Clerk of Court is directed to serve a copy of this Order on Plaintiff and 12 | on the Ninth Circuit Court of Appeals. 13 IT IS SO ORDERED. 14 | Dated: December 3, 2019 15 UNITED STATES DISTRI 17 18 19 20 21 22 23 24 25 26 27 28