(PC) Urmancheev v. Ndoh ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALIM S. URMANCHEEV, Case No. 1:21-cv-00255 JLT HBK (PC) 12 Plaintiff, Appeal No. 24-3043 13 v. ORDER REVOKING IN FORMA PAUPERIS STATUS ON APPEAL 14 R. NDOH, et al., (Doc. 34) 15 Defendant. 16 17 Alim S. Urmancheev proceeded pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. The Court dismissed the action for Plaintiff’s failure to state a 19 claim and entered judgment. (Docs. 22, 29-30.) On May 9, 2024, Plaintiff filed a Notice of 20 Appeal, (Doc. 31), which was processed to the United States Court of Appeals for the Ninth 21 Circuit as Case No. 24-3403. (Docs. 32, 33.) 22 The Ninth Circuit referred this matter to the Court “for the limited purpose of determining 23 whether in forma pauperis status should continue for this appeal or whether the appeal is 24 frivolous or taken in bad faith.” (Doc. 34 at 1, citing 28 U.S.C. § 1915(a)(3); Hooker v. American 25 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) [revocation of the in forma pauperis status is 26 appropriate when the district court finds an appeal is frivolous].) An appeal may not be taken in 27 forma pauperis if the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 28 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). 1 Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. 2 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir., cert. 3 denied, 393 U.S. 891 (1968)); Williams v. Marshall, 795 F. Supp. 978, 978-79 (N.D. Cal. 1992). 4 Good faith on appeal is demonstrated by an objective standard of a nonfrivolous issue. Coppedge 5 v. U.S. 369 U.S. 438, 445 (1962). An issue is “frivolous” where it “lacks an arguable basis either 6 in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A “good faith” appeal must 7 seek review of at least one “non-frivolous” issue or claim. Hooker, 302 F.3d at 1092. 8 Plaintiff’s Notice of Appeal indicates that Plaintiff “appeals to the United States Court of 9 Appeals for the Ninth Circuit from Order Adopting Findings and Recommendations and 10 Dismissing Action for Failure to State a Cognizable Claim entered in this action on the April 17, 11 2024.” (Doc. at 1.) It does not identify the issues he intends to present on appeal, as required Fed. 12 R. Civ. P. 24(a)(1)(C). Thus, the Court cannot determine whether the issues are nonfrivolous. 13 Though Plaintiff’s filing satisfies the minimum requirements of Rule 3, it does not establish that 14 Plaintiff’s appeal is non-frivolous under Rule 24. See e.g., Austin v. Kemper Corp., 2022 WL 15 2276894, at *1 (N.D. Cal. June 23, 2022) (denying a motion to proceed in forma pauperis on 16 appeal for failure to comply with Rule 24(a)(1)(C), because the plaintiff did not identify the 17 arguments he intended to present on appeal); Sanders v. Fitness Int’l LLC, 2024 WL 945132, at 18 *1 (D. Ariz. Feb. 7, 2024) (denying IFP on referral from the circuit court and upon plaintiff’s 19 motion because “[p]laintiff does not explain which issues he plans to present on appeal”); see also 20 Jimenez-Valero v. Asher, 2016 WL 8116156, at *1 (W.D. Wash. Dec. 21, 2016) (“Because 21 [plaintiff] has not explained the basis for his appeal, the Court cannot determine whether his 22 appeal is frivolous), report and recommendation adopted, 2017 WL 384386 (W.D. Wash. Jan. 23 24, 2017). 24 On the other hand, the findings and recommendations, which were adopted by this Court, 25 found that Plaintiff failed to support his legal conclusions1 with factual allegations. The Court 26 1 Notably, the findings and recommendations related to the second screening order issued by the 27 Court and evaluated the first amended complaint. Thus, the Court had provided Plaintiff the pleading standards and pointed out the defects in his complaint once before, but Plaintiff failed to 28 address them in his subsequent complaint. 1 | granted Plaintiff multiple extensions to file objections to the findings and recommendations— 2 | which equated to about four months’ time—but Plaintiff did not ever do so. Because Plaintiff 3 | failed to identify any basis for his appeal, and the underlying findings and recommendations were 4 | based upon established legal authorities, the Court finds that Plaintiffs appeal is frivolous and not 5 | taken in good faith. Accordingly, the Court ORDERS: 6 1. The appeal is declared frivolous and not taken in good faith. 7 2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma 8 pauperis in Appeal No. 24-3403, filed May 9, 2024. 9 3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this order serves as 10 notice to the parties and the United States Court of Appeals for the Ninth Circuit 11 of the finding that Plaintiff is not entitled to proceed in forma pauperis for this 12 appeal. 13 4. The Clerk of Court is directed to serve a copy of this order on the parties and the 14 United States Court of Appeals for the Ninth Circuit. 15 16 IT IS SO ORDERED. 17 | Dated: _May 31, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28