(PC) Whitsitt v. San Joaquin County Mental Health ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 WILLIAM J. WHITSITT, No. 2:22-cv-0356 WBS CKD P 13 Plaintiff, 14 v. ORDER 15 SAN JOAQUIN COUNTY MENTAL HEALTH, et al., 16 Defendants. 17 18 19 ----oo0oo---- 20 After the court adopted the Magistrate Judge’s Findings 21 and Recommendations and dismissed the case, plaintiff appealed. 22 (See Docket Nos. 28, 32, 36.) The Ninth Circuit has now referred 23 the matter back to this court “for the limited purpose of 24 determining whether in forma pauperis status should continue for 25 this appeal or whether the appeal is frivolous or taken in bad 26 faith” under 28 U.S.C. § 1915(a)(3) and Hooker v. American 27 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). (Docket No. 40.) 28 The court continues to agree with the Magistrate nee ne IE I IERIE I ERIN IEE SIE EE OE EO 1 Judge’s recommendation in her Findings and Recommendations that 2 the Fifth Amended complaint be dismissed without leave to amend, 3 for the reasons discussed by the Magistrate Judge. However, the 4 court notes that the Magistrate Judge’s recommendation of 5 | dismissal was based on plaintiff’s failure to state a claim upon 6 which relief can be granted for any of his various claims, and 7 the Magistrate Judge did not find that plaintiff’s claims were 8 frivolous. 9 Overall, while the court finds that dismissal with 10 prejudice was appropriate, it cannot find that plaintiff’s appeal 11 is frivolous or taken in bad faith. Accordingly, the court 12 declines to revoke plaintiff’s IFP status. The Clerk of Court 13 shall promptly notify the Ninth Circuit and the parties of this 14 determination and order. 15 IT IS SO ORDERED. . 16 Dated: November 30, 2023 elle A, hh WILLIAM B. SHUBB 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28