(PC) Solvey v. Gates ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY H. SOLVEY, No: 1:19-cv-01444-NONE-GSA-PC 12 Plaintiff, ORDER DECLINING TO REVOKE IN FORMA PAUPERIS STATUS ON APPEAL 13 vs. (Doc. No. 28.) 14 S. GATES, et al., Defendants. 15 16 17 Plaintiff Stanley H. Solvey is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. 19 By notice entered September 17, 2020, the United States Court of Appeals for the Ninth 20 Circuit referred this matter to this court for the limited purpose of determining whether in forma 21 pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad 22 faith. (Doc. No. 35); see 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 23 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the 24 district court finds the appeal to be frivolous). An in forma pauperis complaint is frivolous if it 25 has “no arguable basis in fact or law.” See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir.1990). 26 On January 30, 2020, plaintiff’s first amended complaint (Doc. No. 14) was screened by 27 the assigned magistrate judge and found to lack sufficient factual detail to allow the court to 28 reasonably infer that each defendant is liable for the misconduct alleged, namely deliberate MADE 2 LDV EET ENE ENS SEA YUCCA ee Oy Ove 1 | indifference to plaintiffs serious medical needs. (Doc. No. 15). Plaintiff was given a second 2 || opportunity to amend his complaint. (/d. at 13.) After being granted four extensions of time to 3 | do so (see Doc. Nos. 18, 21, 23, 25), plaintiff notified the court that he “believes he has stated a 4 | claim” for deliberate indifference and therefore declined to amend his first amended complaint. 5 | (Doc. No. 26.) 6 On August 10, 2020, the assigned magistrate judge entered findings and 7 | recommendations, recommending that this case be dismissed due to plaintiffs failure to state a 8 | cognizable claim, failure to comply with a court order, and failure to prosecute. (Doc. No. 28.) 9 | On August 27, 2020, plaintiff filed objections to the findings and recommendations. (Doc. No. 10 | 29.) On September 2, 2020, the undersigned adopted those findings and recommendations (Doc. 11 | No. 30) and judgment was entered (Doc. No. 31). 12 Although the undersigned ultimately agreed with the magistrate judge that even when read 13 | liberally the first amended complaint failed to allege sufficient facts to state a cognizable claim, 14 | the court does not find plaintiffs appeal to be frivolous, as it is not wholly without any “arguable 15 | basis in fact or law.” 16 Based on the foregoing, the court DECLINES to revoke plaintiff's in forma pauperis 17 | status in Appeal No. 20-16790, filed September 14, 2020. 18 The Clerk of the Court is directed to serve a copy of this order on the parties and the 19 | United States Court of Appeals for the Ninth Circuit. 20 21 | IT IS SOORDERED. me □ Dated: _ September 23, 2020 a 4 A 5 anys 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28