Berry v. Yosemite Community College District ( 2019 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 DEBRA BERRY, Case No. 1:16-cv-00411-LJO-EPG 14 Plaintiff, ORDER RE: IFP STATUS ON APPEAL 15 v. (ECF NO. 92) 16 YOSEMITE COMMUNITY COLLEGE 17 DISTRICT, et al., 18 Defendants. 19 By notice entered October 7, 2019, the United States Court of Appeals for the Ninth 20 Circuit referred this matter to the District Court for the limited purpose of determining whether 21 the in forma pauperis status of Plaintiff Debra Berry (“Plaintiff”) should continue for this appeal 22 or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also 23 Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). 24 Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. 25 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir. 26 1968), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D. 27 Cal. 1992). A federal court may dismiss a claim filed in forma pauperis prior to service if it is 28 satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren, 1 | 842 F.Supp. 1230, 1231 (N.D. Cal. 1994). A claim is ‘frivolous’ when it is without ‘basis in law 2 | or fact,’ and ‘malicious’ when it is ‘filed with the intention or desire to harm another.’” Knapp v. 3 | Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). A finding of frivolity in this context is equivalent to 4 | finding a lack of good faith. 7d. at 1110. A lack of good faith can be inferred where “plaintiffs 5 || seek to exploit the court system solely for delay or to vex defendants.” Vega v. JPMorgan Chase 6 | Bank, N.A., 654 F.Supp.2d 1104, 1121 (E.D. Cal. 2009). 7 The Court does not find that Plaintiff takes the instant appeal in bad faith. This is not a g | situation where “plaintiffs seek to exploit the court system solely for delay or to vex defendants.” 9g | ld. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff is entitled to proceed in forma pauperis in Appeal No. 19-16932, filed on 12 September 30, 2019; 13 2. This Order serves as notice to the parties and the United States Court of Appeals 14 for the Ninth Circuit of the finding that Plaintiff is entitled to proceed in forma 15 pauperis for this appeal; and 16 3. The Clerk of the Court is directed to serve a copy of this Order on Plaintiff and the 17 United States Court of Appeals for the Ninth Circuit. 18 IT IS SO ORDERED. 19 20 | Dated: _ October 15, 2019 [sf hy □ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28