Morgan v. Corrections Corp. of America, et al

Filing 115

ORDER in the Court's view Plaintiff's Notice of Appeal is not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). Plaintiff's in forma pauperis status is hereby revoked, re: 9CCA #11-17419 and 114 Referral Notice. Signed by Judge Paul G Rosenblatt on 11/09/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas Dale Morgan,
Plaintiff,

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vs.

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Corrections Corporation of America,
et al.,

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Defendants.
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No. CV 10-1584-PHX-PGR
ORDER ON PLAINTIFF’S
IN FORMA PAUPERIS STATUS

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Plaintiff Thomas Dale Morgan brought this civil rights action under 42 U.S.C. § 1983

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against the Corrections Corporation of America and several of its officials. (Doc. 1.) On

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September 24, 2011, the Court, finding that Plaintiff’s claims were moot and/or unexhausted,

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granted Defendants’ Motion to Dismiss and entered judgment against Plaintiff. (Docs.

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109–10.) Thereafter, Plaintiff filed a timely Notice of Appeal. (Doc. 111.) On October 18,

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2011, the Ninth Circuit issued a Referral Notice directing the Court to determine whether

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Plaintiff’s in forma pauperis (IFP) status should continue for his appeal or whether the appeal

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is frivolous or taken in bad faith. (Doc. 114.)

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Under 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the

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trial court certifies in writing that it is not taken in good faith.” “Not taken in good faith”

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means “frivolous.” See Ellis v. United States, 356 U.S. 674, 674–75 (1958); Gardner v.

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Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (appellant permitted to proceed IFP on appeal only

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if appeal would not be frivolous). If the district court denies IFP status on appeal, it must

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provide written reasons for the denial. Fed. R. App. P. 24(a)(2).

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The Court concludes that an appeal would be frivolous because Plaintiff has presented

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nothing to rebut Defendants’ evidence of nonexhaustion. In its Order dismissing the action,

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the Court determined that Defendants met their burden of demonstrating Plaintiff’s failure

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to exhaust his claims as required under the Prison Litigation Reform Act, 42 U.S.C.

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§ 1997e(a). (Doc. 109.) Specifically, with respect to Plaintiff’s “transport injury” claim, the

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Court found that Plaintiff did not “defeat Defendants’ evidence of an available administrative

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remedy.” (Id. at 13.) With respect to the “soft yard policy” claim, Plaintiff has not refuted

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evidence that he failed to complete the administrative appeal process before filing this action.

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(Id.) Finally, with respect to his deliberate indifference allegation relating to the 2008 assault,

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Plaintiff has not rebutted the Defendants’ evidence that he failed to “put prison officials on

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notice” of the claim. (Id. at 16.)

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Accordingly,

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IT IS ORDERED certifying that Plaintiff’s appeal is not taken in good faith pursuant

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to 28 U.S.C. § 1915(a)(3). Plaintiff’s IFP status is hereby revoked.
DATED this 9th day of November, 2011.

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