(PC) Smith v. Cambpell ( 2021 )

1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 LAWRENCE CHRISTOPHER SMITH, CASE NO. 1:19-cv-00271-AWI-BAM (PC) 6 Plaintiff, ORDER REGARDING IN FORMA 7 v. PAUPERIS STATUS ON APPEAL 8 CAMPBELL, et al., (Doc. No. 45) 9 Defendant. 10 11 12 Plaintiff Lawrence Christopher Smith is a state prisoner who proceeded pro se and in 13 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 14 On March 17, 2021, the assigned magistrate judge issued findings and recommendations 15 recommending that Plaintiff’s motion for relief from judgment be denied and that this case be 16 dismissed with prejudice for bad-faith conduct. Doc. No. 38. The magistrate judge found that 17 terminating sanctions were appropriate due to Plaintiff’s bad-faith conduct in this case and other 18 companion cases before the Court. Id. The findings and recommendations were adopted in full on 19 April 14, 2021. Doc. No. 40. Judgment was entered on the same date. Doc. No. 41. On May 7, 20 2021, Plaintiff filed a notice of appeal. Doc. No. 42. 21 By notice entered May 12, 2021, the United States Court of Appeals for the Ninth Circuit 22 referred this matter to this Court for the limited purpose of determining whether in forma pauperis 23 status should continue for Plaintiff’s appeal or whether the appeal is frivolous or taken in bad 24 faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. Amer. Airlines, 302 F.3d 1091, 1092 (9th 25 Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court finds the 26 appeal to be frivolous). 27 For the reasons discussed below, the Court certifies that Plaintiff’s appeal is not taken in 28 good faith, and that his in forma pauperis status is revoked. 1 The Federal Rules of Appellate Procedure provide as follows: 2 (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 3 further authorization, unless: 4 (A) the district court—before or after the notice of appeal is filed—certifies that 5 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 6 or finding[.] 7 Fed. R. App. P. 24(a)(3)(A). 8 Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the 9 trial court certifies in writing that it is not taken in good faith.” The good-faith standard is an 10 objective one, and good faith is demonstrated when an individual “seeks appellate review of any 11 issue not frivolous.” See Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes of 12 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. 13 Williams, 490 U.S. 319, 325 (1989). 14 A review of the record in this action reveals that Plaintiff’s appeal is merely an effort to 15 continue the same bad-faith conduct for which this action was dismissed. Furthermore, Plaintiff 16 has filed appeals in other cases dismissed for the same bad-faith conduct, and the Court has 17 certified that those appeals were also not taken in good faith. See Smith v. Weiss, No. 21-15516 18 (9th Cir. filed Mar. 22, 2021); Smith v. Becerra, No. 21-15068 (9th Cir. filed Jan. 11, 2021). 19 Therefore, for the reasons stated in the magistrate judge’s March 17, 2021 findings and 20 recommendations, as adopted in full by this Court on April 14, 2021, the Court certifies that 21 Plaintiff’s appeal is not taken in good faith. 22 23 ORDER 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma 26 pauperis in Appeal No. 21-15831; 27 2. The Clerk of the Court is directed to notify the United States Court of Appeals for 28 the Ninth Circuit that this Court certifies, pursuant to Federal Rule of Appellate 1 Procedure 24(a)(3)(A), that Plaintiff's appeal is not taken in good faith, and that he 2 must therefore seek further authorization from the Court of Appeals pursuant to 3 Rule 24(a)(5) to obtain leave to proceed in forma pauperis on appeal; and 4 3. The Clerk of the Court is directed to serve a copy of this order on the parties and 5 the United States Court of Appeals for the Ninth Circuit. 6 7 IT IS SO ORDERED. g | Dated: _ May 14, 2021 7 ZS □ Z Cb Led — SENIOR DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28