(PC) Smith v. Weiss ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, No. 1:18-cv-00852-DAD-BAM (PC) 12 Plaintiff, Appeal No. 21-15516 13 v. ORDER REGARDING IN FORMA PAUPERIS STATUS ON APPEAL 14 WEISS, et al., (Doc. No. 67) 15 Defendants. 16 17 Plaintiff Lawrence Christopher Smith is a state prisoner who proceeded pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On December 11, 2020, the assigned magistrate judge issued findings and 20 recommendations recommending that defendants’ motion to dismiss/for terminating sanctions be 21 granted and that this case be dismissed with prejudice. (Doc. No. 58.) The magistrate judge 22 found that terminating sanctions were appropriate due to plaintiff’s bad faith conduct in refusing 23 to comply with his discovery obligations and needlessly multiplying court proceedings by filing 24 repetitious and voluminous filings. (Id.) The findings and recommendations were adopted in full 25 on March 5, 2021. (Doc. No. 62.) Judgment was entered accordingly the same date. (Doc. No. 26 63.) On March 22, 2021, plaintiff filed a notice of appeal. (Doc. No. 64.) 27 By notice entered April 1, 2021, the United States Court of Appeals for the Ninth Circuit 28 referred this matter to the District Court for the limited purpose of determining whether in forma 1 pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad 2 faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. Amer. Airlines, 302 F.3d 1091, 1092 (9th 3 Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court finds the 4 appeal to be frivolous). 5 For the reasons discussed below, the court certifies plaintiff’s appeal is not taken in good 6 faith, and his in forma pauperis status is revoked. 7 The Federal Rules of Appellate Procedure provide as follows: 8 (3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma pauperis without 9 further authorization, unless: 10 (A) the district court—before or after the notice of appeal is filed—certifies that 11 the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification 12 or finding[.] 13 Fed. R. App. P. 24(a)(3)(A). 14 Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the 15 trial court certifies in writing that it is not taken in good faith.” The good faith standard is an 16 objective one, and good faith is demonstrated by when an individual “seeks appellate review of 17 any issue not frivolous.” See Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes 18 of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. 19 Williams, 490 U.S. 319, 325 (1989). 20 A review of the record in this action and the declaration filed in support of the notice of 21 appeal reveals that plaintiff’s appeal is merely an effort to continue the same bad faith conduct 22 that resulted in this action being dismissed. Therefore, for the reasons stated in the magistrate 23 judge’s December 11, 2020 findings and recommendations, as adopted in full by this court on 24 March 5, 2021, the court certifies that plaintiff’s appeal is not taken in good faith. 25 Accordingly, 26 1. Pursuant to 28 U.S.C. § 1915(a)(3), plaintiff is not entitled to proceed in forma pauperis 27 in Appeal No. 21-15516; 28 ///// 1 2. The Clerk of the Court is directed to notify the United States Court of Appeals for the 2 Ninth Circuit that this court certifies, pursuant to Federal Rule of Appellate Procedure 3 24(a)(3)(A), that plaintiffs appeal is not taken in good faith, and he must therefore seek 4 further authorization from the Court of Appeals pursuant to Rule 24(a)(5) to obtain leave 5 to proceed in forma pauperis on appeal; and 6 3. The Clerk of the Court is directed to serve a copy of this order on the parties and the 7 United States Court of Appeals for the Ninth Circuit. 8 | IT IS SOORDERED. a " 9 Li. wh F Dated: _ April 9, 2021 Aa oe 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28