Fahie v. Mercy Hospital et al

Filing 36

ORDER REVOKING Plaintiff's In Forma Pauperis Status on Appeal, signed by District Judge Lawrence J. O'Neill on 8/15/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTONIO FAHIE,

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CASE NO. 1:09-CV-01024-LJO-DLB PC
Plaintiff,

ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS ON APPEAL

v.
MERCY HOSPITAL, et al.,
Defendants.

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/

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Plaintiff Antonio Fahie (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation. Plaintiff was proceeding pro se and in forma

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pauperis in this civil rights action.

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Plaintiff initiated this action by filing his complaint on June 11, 2009. Plaintiff filed his

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first amended complaint on July 7, 2009. On October 28, 2009, the magistrate judge assigned to

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this action screened Plaintiff’s first amended complaint and found that it failed to state a claim.

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Plaintiff was provided leave to file a second amended complaint. November 13, 2009, Plaintiff

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filed his second amended complaint. On May 19, 2010, the magistrate judge issued a Findings

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and Recommendation recommending dismissal of certain claims, and providing Plaintiff leave to

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amend as to his claims against Defendant Mercy Hospital. This order was adopted on June 21,

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2010 by the undersigned. On July 22, 2010, Plaintiff filed his third amended complaint On

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December 3, 2010, the magistrate issued a Findings and Recommendations recommending

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dismissal of the action for failure to state a claim. On February 2, 2011, the undersigned adopted

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the Findings and Recommendations in full, dismissing the action. Plaintiff filed a motion for
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relief from final judgment on February 25, 2011. On July 22, 2011, the undersigned denied

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Plaintiff’s motion. Plaintiff filed his notice of appeal on August 8, 2011.

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

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the trial court certifies in writing that it is not taken in good faith.” The Court finds that

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Plaintiff’s appeal is not taken in good faith. Plaintiff’s allegations failed to state a claim.

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Plaintiff was provided several opportunities to amend his pleadings to cure the deficiencies, and

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was unable to do so. Mere negligence in treating or diagnosing a medical condition is not a

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cognizable 42 U.S.C. § 1983 claim. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).

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Accordingly, Plaintiff’s appeal is not taken in good faith, and is frivolous. Plaintiff’s in

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forma pauperis status is HEREBY ORDERED revoked for purposes of his appeal.

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IT IS SO ORDERED.

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Dated:
b9ed48

August 15, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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