(PS) Conerly v. Winn ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARINA CONERLY, 12 Plaintiff, No. 2:21-cv-01076-TLN-JDP 13 14 v. ORDER JOHN PATRICK WINN, et al., 15 Defendants, 16 17 18 Plaintiff Carina Conerly (“Plaintiff”) is a state prisoner, proceeding pro se, with a civil 19 rights action pursuant to 42 U.S.C. § 1983. On February 1, 2022, the Court dismissed this action 20 and judgment was entered. (ECF Nos. 6, 7.) Plaintiff appealed the judgment to the Ninth Circuit 21 Court of Appeals. (ECF No. 8.) 22 On February 15, 2022, the Ninth Circuit referred the matter to this Court for the limited 23 purpose of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on 24 appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 11 at 1 (citing 28 U.S.C. 25 § 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).) 26 “An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken 27 in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal [IFP] is easily met ... 28 [t]he good faith requirement is satisfied if the [appellant] seeks review of any issue that is ‘not 1 frivolous.’” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quoting Coppedge v. U.S., 2 369 U.S. 438 445 (1962)); see also Hooker, 302 F.3d at 1092 (noting that an appeal is taken in 3 “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or 4 claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it 5 lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 6 other words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces 7 not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. 8 As detailed by the magistrate judge in the January 3, 2022 Findings and 9 Recommendations that were subsequently adopted by this Court on February 1, 2022, Plaintiff’s 10 Complaint was frivolous and duplicative of other equally frivolous cases. (ECF Nos. 4, 6.) The 11 Court therefore adopted the magistrate judge’s recommendation to dismiss the Complaint with 12 prejudice as frivolous. (ECF No. 6.) In sum, there are no valid grounds upon which an appeal 13 can be based given that none of the arguments Plaintiff presented to this Court are non-frivolous. 14 Based on the record before it, the Court finds that Plaintiff’s appeal taken from its 15 February 1, 2022 Order is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. 16 R. App. P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 U.S. at 325. Plaintiff’s IFP status 17 on appeal should therefore be revoked. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s in forma pauperis status on appeal is hereby REVOKED; and 20 2. The Clerk of the Court is directed to serve this Order on the Ninth Circuit Court of 21 Appeals in Case No. 22-15221. 22 IT IS SO ORDERED. 23 DATED: March 8, 2022 24 25 26 27 28