Benitez v. Arpaio et al

Filing 38

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sergio Cortez Benitez,

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No. CV 12-0560-PHX-RCB

Plaintiff,
vs.

ORDER

Joseph M. Arpaio, et al.,
Defendants.

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Plaintiff filed this civil rights action pursuant to the Americans with Disabilities

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Act (ADA). (Doc. 12.) Defendant Maricopa County filed a Motion to Dismiss for

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failure to exhaust administrative remedies and for failure to state a claim. (Doc. 27.) The

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Court granted the Motion to Dismiss for failure to exhaust administrative remedies and

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terminated the action. (Doc. 33.) Plaintiff filed a Notice of Appeal. (Doc. 35.)

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The United States Court of Appeals for the Ninth Circuit issued a Referral Notice

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to this Court for determination whether in forma pauperis status should be revoked

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because the appeal is frivolous or taken in bad faith. (Doc. 37.) Under 28 U.S.C.

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§ 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial court certifies in

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writing that it is not taken in good faith.” “Not taken in good faith” means “frivolous.”

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See Ellis v. United States, 356 U.S. 674, 674-75 (1958); Gardner v. Pogue, 558 F.2d 548,

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551 (9th Cir. 1977) (indigent appellant permitted to proceed IFP on appeal only if appeal

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would not be frivolous). For a party who was permitted to proceed in forma pauperis in

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the district court, if the district court determines that an appeal is not taken in good faith,

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it must state the reasons for the finding. Fed. R. App. P. 24(a)(3)(A).

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As to the Motion to Dismiss and exhaustion of administrative remedies, the Court

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noted that Plaintiff filed grievance #11-04275 on June 13, 2011, raising the issues of the

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denial of the cane and the subsequent fall—the same issues raised in the Second

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Amended Complaint. (Doc. 33; ref. Doc. 27-2 at 3.) This grievance was deemed

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resolved. The resolution, which Plaintiff signed on June 23, 2011, appears to state “will

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get walker for [illegible]. Show them your extra items stip for a wheelchair for court.

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Mr. Benites you had a CT & MRI done at the hospital emergency [illegible] your back

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CT & x-ray were negative at the hospital.” (Doc. 27-2 at 3.)

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The Court noted that the issue for purposes of the exhaustion of administrative

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remedies was whether this resolution constituted a grant of relief or partial relief. (Doc.

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33 at 7, citing Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010).) The Court found on

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the particular facts of the case that it did not because Plaintiff submitted a later grievance

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on the same matter, which noted the prior resolution; Plaintiff then determined that the

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matter was not resolved. Plaintiff subsequently failed to pursue the issue through the

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final grievance step. (Id.)

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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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