(PS) Warfield v. Solano County Public Defenders Offices ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRODERICK J. WARFIELD, No. 2:22-cv-00782-TLN-JDP 12 Plaintiff, 13 v. ORDER 14 SOLANO COUNTY PUBLIC DEFENDERS, et al., 15 Defendants. 16 17 18 On March 2, 2023, the Ninth Circuit referred the matter to this Court for the limited 19 purpose of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on 20 appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 42 (citing 28 U.S.C. § 21 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).) 22 “An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken 23 in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal [IFP] is easily 24 met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review of any issue that is 25 ‘not frivolous.’” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quoting Coppedge v. 26 U.S., 369 U.S. 438 445 (1962)); see also Hooker, 302 F.3d at 1092 (noting that an appeal is taken 27 in “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or 28 claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it 1 lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 2 | other words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces 3 | not only the inarguable legal conclusion, but also the fanciful factual allegation.” Jd. 4 On January 26, 2023, the magistrate judge issued findings and recommendations 5 || recommending that this action should be dismissed as frivolous and that Plaintiff's motion for 6 | injunctive relief be denied. (ECF No. 31.) This Court reviewed the relevant filings and adopted 7 | the findings and recommendations in full and dismissed the action on February 16, 2023. (ECF 8 | No. 37.) 9 Based on the record before it, the Court cannot conceive of any valid grounds upon which 10 | an appeal can be based. The Court therefore finds that Plaintiffs appeal is frivolous and not 11 | taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Hooker, 302 F.3d 12 | at 1092; Neitzke, 490 U.S. at 325. Plaintiff's IFP status on 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. 23-15274. 17 IT IS SO ORDERED. 18 | DATE: March 10, 2023 19 yy / “0 “ \/ Lu 21 — ZA Troy L. Nunley» } 22 United States District Judge 23 24 25 26 27 28