(PS) Dearman v. Olivera ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN ALAN DEARMAN, No. 2:22-cv-02158-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 ELIZABETH UFKES OLIVERA, et al., 15 Defendants. 16 17 On July 19, 2023, the Ninth Circuit referred the matter to this Court for the limited 18 purpose of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on 19 appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 15 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 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 May 17, 2023, the magistrate judge issued findings and recommendations, 5 || recommending the action be dismissed for failure to state a claim. (ECF No. 6.) The magistrate 6 || judge recommended the dismissal be with prejudice because Plaintiff had filed three complaints 7 | in the action and was previously advised of the standards for pleading a federal claim. Ud.) The 8 | Court considered the filings — including Plaintiffs objections to the findings and 9 | recommendations — and adopted in full the findings and recommendations on June 30, 2023. 10 | (ECF No. 8.) 11 Based on the record before it, the Court cannot conceive of any valid grounds upon which 12 | an appeal can be based. The Court therefore finds that Plaintiffs appeal is frivolous and not 13 | taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Hooker, 302 F.3d 14 | at 1092; Neitzke, 490 U.S. at 325. Plaintiff's IFP status on appeal should therefore be revoked. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff's in forma pauperis status on appeal is hereby REVOKED; and 17 2. The Clerk of the Court is directed to serve this Order on the Ninth Circuit Court of 18 Appeals in Case No. 23-16015. 19 IT IS SO ORDERED. 20 Dated: July 21, 2023 \ /) a “ \/ of 22 — ZA Troy L. Nunley } 23 United States District Judge 24 25 26 27 28