(PC) Brady v. Jones ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PATRICK BRADY, 10 Plaintiff-Appellant, No. 2:21-cv-00489-TLN-AC 11 Ninth Circuit Case No. 21-16386 12 v. 13 SCOTT JONES, Sheriff, et al., ORDER FINDING APPEAL FRIVOLOUS AND REVOKING IN FORMA PAUPERIS 14 Defendants-Appellees, STATUS 15 16 17 18 19 20 This is a closed federal civil rights action. Plaintiff Patrick Brady (“Plaintiff”), a federal 21 pretrial detainee being held in the Sacramento County Jail, appeals to the Ninth Circuit Court of 22 Appeals this Court’s dismissal of his action without leave to amend. (ECF No. 25.) The Ninth 23 Circuit referred the matter to this Court for a determination of whether Plaintiff’s in forma 24 pauperis (“IFP”) status “should continue for this appeal or whether the appeal is frivolous or 25 taken in bad faith.” (ECF No. 28.) The Court determines that Plaintiff’s IFP status should not 26 continue. 27 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it 28 is not taken in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal in forma 1 pauperis is easily met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review 2 of any issue that is ‘not frivolous.’ ” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) 3 (quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)); see also Hooker v. Am. Airlines, 4 302 F.3d 1091, 1092 (9th Cir. 2002) (noting that an appeal is taken in “good faith” if it seeks 5 review of “non-frivolous” issues and holding that if at least one issue or claim is non-frivolous, 6 the appeal must proceed IFP as a whole). An action is frivolous “where it lacks an arguable basis 7 either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term 8 “frivolous,” as used in § 1915 and when applied to a complaint, “embraces not only the 9 inarguable legal conclusion, but also the fanciful factual allegation.” Id. 10 As thoroughly detailed by the magistrate judge in the June 24, 2021 findings and 11 recommendations and subsequently adopted by this Court on August 6, 2021, Plaintiff’s 12 complaint was frivolous. (ECF No. 23 (adopting in full the findings and recommendations at 13 ECF No. 20).) More specifically, Plaintiff’s claims failed as a matter of law and amendment 14 would be futile because: (1) Plaintiff alleges facts showing a legitimate government purpose for 15 his placement in a total separation unit, which is fatal to his due process claim; (2) Plaintiffs’ 16 second and third claims are not ripe; and (3) the nature of the purported dangers specified in 17 Plaintiff’s deliberate indifference claim are indisputably speculative. (See ECF No. 20 at 6–9.) 18 In sum, there are no valid grounds on which an appeal can be based, given that none of the 19 arguments Plaintiff made to this Court would be non-frivolous if made again on appeal. 20 Based on the record before it, the Court finds and certifies that any appeal taken from its 21 August 6, 2021 Order dismissing Plaintiff’s action (ECF No. 23) is frivolous and not taken in 22 good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; 23 Neitzke, 490 U.S. at 325. Accordingly, Plaintiff’s IFP status is hereby REVOKED. 24 The Clerk of the Court is directed to notify Plaintiff and the Ninth Circuit of this Order 25 forthwith. See Fed. R. App. P. 24(a)(4). Plaintiff may file a motion for leave to proceed IFP on 26 appeal in the Ninth Circuit within thirty (30) days after service of notice of this Order. See Fed. 27 /// 28 /// 1 | R. App. P. 24(a)(5). Any such motion “must include a copy of the affidavit filed in the district 2 | court and the district court’s statement of reasons for its action.” Id. 3 IT IS SO ORDERED. 4 | Dated: September 7, 2021 ° □□ / “ bu g Troy L. Nunley United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28