(PC) Sekona v. Custino ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, No. 2:16-cv-00517-TLN-DMC 12 Plaintiff, 13 v. ORDER 14 F. CUSTINO, 15 Defendant. 16 17 On June 8, 2023, the Ninth Circuit referred the matter to this Court for the limited purpose 18 of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on appeal or 19 whether the appeal is frivolous or taken in bad faith. (ECF No. 221 at 1 (citing 28 U.S.C. § 20 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).) 21 “An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken 22 in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal [IFP] is easily 23 met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review of any issue that is 24 ‘not frivolous.’” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quoting Coppedge v. 25 U.S., 369 U.S. 438 445 (1962)); see also Hooker, 302 F.3d at 1092 (noting that an appeal is taken 26 in “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or 27 claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it 28 lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 1 | other words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces 2 | not only the inarguable legal conclusion, but also the fanciful factual allegation.” Jd. 3 On January 5, 2023, the magistrate judge issued findings and recommendations that the 4 | action be dismissed for failure to prosecute and failure to comply with the Court’s rules and 5 | orders. (ECF No. 209.) Plaintiff filed objections, Defendant filed a response, and Plaintiff filed a 6 | reply. (ECF Nos. 210, 212, 213.) This Court reviewed the filings and adopted the findings and 7 || recommendations in full and dismissed the action on May 11, 2023. (ECF No. 215.) 8 Based on the record before it, the Court cannot conceive of any valid grounds upon which 9 | an appeal can be based. The Court therefore finds that Plaintiff's appeal taken from its August 10 | 16, 2022 Order is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 11 | P.24(a)3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 U.S. at 325. Plaintiff’s IFP status on 12 | appeal should therefore be revoked. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff's in forma pauperis status on appeal is hereby REVOKED; and 15 2. The Clerk of the Court is directed to serve this Order on the Ninth Circuit Court of 16 Appeals in Case No. 23-15848. 17 IT IS SO ORDERED. 18 || Date: June 16, 2023 19 () jf 20 “ □ ) 1 — ny 21 Troy L. Nunley 0 United States District Judge 23 24 25 26 27 28