(PC) Hendrix v. California Department of Corrections and Rehabilitation ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCELL T. HENDRIX, No. 2:22-cv-01319-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 On October 25, 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. 22 at 1 (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 1 | claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it 2 | lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In 3 | other words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces 4 | not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. 5 On August 28, 2023, the magistrate judge screened Plaintiff's Second Amended 6 | Complaint and recommended it be dismissed without leave to amend. (ECF No. 15.) Plaintiff 7 | filed objections to the findings and recommendations. (ECF No. 16.) This Court reviewed the 8 | filings and adopted the findings and recommendations in full and dismissed the action on 9 | September 25, 2023. (ECF No. 17.) 10 Based on the record before it, the Court cannot conceive of any valid grounds upon which 11 | an appeal can be based. The Court therefore finds that Plaintiff's appeal taken from its September 12 | 25, 2023 Order is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 13 | P. 24(a)3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 U.S. at 325. Plaintiff’s IFP status on 14 | 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. 23-2747. 19 IT IS SO ORDERED. 20 | Date: November 1, 2023 21 □□ / 22 “ \/ fb 23 a AWN a Troy L. Nunley> } 24 United States District Judge 25 26 27 28