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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sergio Cortez Benitez, 10 11 12 13 No. CV 12-0560-PHX-RCB Plaintiff, vs. ORDER Joseph M. Arpaio, et al., Defendants. 14 15 Plaintiff filed this civil rights action pursuant to the Americans with Disabilities 16 Act (ADA). (Doc. 12.) Defendant Maricopa County filed a Motion to Dismiss for 17 failure to exhaust administrative remedies and for failure to state a claim. (Doc. 27.) The 18 Court granted the Motion to Dismiss for failure to exhaust administrative remedies and 19 terminated the action. (Doc. 33.) Plaintiff filed a Notice of Appeal. (Doc. 35.) 20 The United States Court of Appeals for the Ninth Circuit issued a Referral Notice 21 to this Court for determination whether in forma pauperis status should be revoked 22 because the appeal is frivolous or taken in bad faith. (Doc. 37.) Under 28 U.S.C. 23 § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial court certifies in 24 writing that it is not taken in good faith.” “Not taken in good faith” means “frivolous.” 25 See Ellis v. United States, 356 U.S. 674, 674-75 (1958); Gardner v. Pogue, 558 F.2d 548, 26 551 (9th Cir. 1977) (indigent appellant permitted to proceed IFP on appeal only if appeal 27 would not be frivolous). For a party who was permitted to proceed in forma pauperis in 28 1 the district court, if the district court determines that an appeal is not taken in good faith, 2 it must state the reasons for the finding. Fed. R. App. P. 24(a)(3)(A). 3 As to the Motion to Dismiss and exhaustion of administrative remedies, the Court 4 noted that Plaintiff filed grievance #11-04275 on June 13, 2011, raising the issues of the 5 denial of the cane and the subsequent fall—the same issues raised in the Second 6 Amended Complaint. (Doc. 33; ref. Doc. 27-2 at 3.) This grievance was deemed 7 resolved. The resolution, which Plaintiff signed on June 23, 2011, appears to state “will 8 get walker for [illegible]. Show them your extra items stip for a wheelchair for court. 9 Mr. Benites you had a CT & MRI done at the hospital emergency [illegible] your back 10 CT & x-ray were negative at the hospital.” (Doc. 27-2 at 3.) 11 The Court noted that the issue for purposes of the exhaustion of administrative 12 remedies was whether this resolution constituted a grant of relief or partial relief. (Doc. 13 33 at 7, citing Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010).) The Court found on 14 the particular facts of the case that it did not because Plaintiff submitted a later grievance 15 on the same matter, which noted the prior resolution; Plaintiff then determined that the 16 matter was not resolved. Plaintiff subsequently failed to pursue the issue through the 17 final grievance step. (Id.) 18 19 20 21 22 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. 23 24 25 26 27 28 -2-

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