Benitez v. Arpaio et al
ORDER, the Court declines to revoke Plaintiff's in forma pauperis status for the appeal, re: 13-16926 37 USCA Referral Notice, 35 Notice of Appeal. Signed by Senior Judge Robert C Broomfield on 10/21/13. (REW)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Sergio Cortez Benitez,
No. CV 12-0560-PHX-RCB
Joseph M. Arpaio, et al.,
Plaintiff filed this civil rights action pursuant to the Americans with Disabilities
Act (ADA). (Doc. 12.) Defendant Maricopa County filed a Motion to Dismiss for
failure to exhaust administrative remedies and for failure to state a claim. (Doc. 27.) The
Court granted the Motion to Dismiss for failure to exhaust administrative remedies and
terminated the action. (Doc. 33.) Plaintiff filed a Notice of Appeal. (Doc. 35.)
The United States Court of Appeals for the Ninth Circuit issued a Referral Notice
to this Court for determination whether in forma pauperis status should be revoked
because the appeal is frivolous or taken in bad faith. (Doc. 37.) Under 28 U.S.C.
§ 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” “Not taken in good faith” means “frivolous.”
See Ellis v. United States, 356 U.S. 674, 674-75 (1958); Gardner v. Pogue, 558 F.2d 548,
551 (9th Cir. 1977) (indigent appellant permitted to proceed IFP on appeal only if appeal
would not be frivolous). For a party who was permitted to proceed in forma pauperis in
the district court, if the district court determines that an appeal is not taken in good faith,
it must state the reasons for the finding. Fed. R. App. P. 24(a)(3)(A).
As to the Motion to Dismiss and exhaustion of administrative remedies, the Court
noted that Plaintiff filed grievance #11-04275 on June 13, 2011, raising the issues of the
denial of the cane and the subsequent fall—the same issues raised in the Second
Amended Complaint. (Doc. 33; ref. Doc. 27-2 at 3.) This grievance was deemed
resolved. The resolution, which Plaintiff signed on June 23, 2011, appears to state “will
get walker for [illegible]. Show them your extra items stip for a wheelchair for court.
Mr. Benites you had a CT & MRI done at the hospital emergency [illegible] your back
CT & x-ray were negative at the hospital.” (Doc. 27-2 at 3.)
The Court noted that the issue for purposes of the exhaustion of administrative
remedies was whether this resolution constituted a grant of relief or partial relief. (Doc.
33 at 7, citing Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010).) The Court found on
the particular facts of the case that it did not because Plaintiff submitted a later grievance
on the same matter, which noted the prior resolution; Plaintiff then determined that the
matter was not resolved. Plaintiff subsequently failed to pursue the issue through the
final grievance step. (Id.)
The Court finds that the appeal is not frivolous or taken in bad faith. See 28
U.S.C. § 1915(a)(3).
IT IS ORDERED that the Court declines to revoke Plaintiff’s in forma pauperis
status for the appeal.
DATED this 21st day of October, 2013.
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