Dixon v. Department of Correction and Rehabilitation et al

Filing 28

ORDER signed by District Judge Lawrence J. O'Neill on 7/28/2011 revoking Plaintiff's IFP status on Appeal re 27 USCA Notice and 23 Notice of Appeal filed by Duane Dixon. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DUANE DIXON,

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CASE NO. 1:10-CV-01225-LJO-DLB PC
Plaintiff,

ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS ON APPEAL

v.
DEPARTMENT OF CORRECTION AND
REHABILITATION, et al.,

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Defendants.
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/

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Plaintiff Duane Dixon (“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. Plaintiff initiated this action by filing his complaint on July 8,

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2010. Plaintiff filed an amended complaint on August 5, 2010. On March 3, 2011, the

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magistrate judge assigned to this action filed a Findings and Recommendations recommending

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dismissal of this action for failure to state a claim. The undersigned adopted the Findings and

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Recommendations on June 8, 2011. Plaintiff subsequently filed a notice of appeal on July 22,

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2011. Doc. 23.

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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 alleged at most negligence on the part of Defendants, which is not a cognizable Eighth

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Amendment claim. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Additionally, Plaintiff
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did not exhaust administrative remedies in this action, as required by the Prison Litigation

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Reform Act. Woodford v. Ngo, 548 U.S. 84, 89 (2006).

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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

July 28, 2011

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

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