Flores v. Flores, et al.

Filing 39

ORDER Revoking Plaintiff's In Forma Pauperis Status And Certifying Plaintiff's Appeal Is Frivolous (Doc. 6 ), signed by Magistrate Judge Michael J. Seng on 1/19/2016. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANTOS RENE FLORES,
Plaintiff,

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v.

Case No. 1:14-cv-00577- MJS (PC)
ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS AND
CERTIFYING PLAINTIFF’S APPEAL IS
FRIVOLOUS

S. FLORES, et al.,
Defendants.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. On January 20, 2015, Plaintiff’s complaint
was dismissed as untimely on statute of limitations grounds. (ECF No. 25.) Plaintiff’s
motion for reconsideration of the Court’s dismissal order was denied on November 30,
2015. (ECF No. 34.) Plaintiff thereafter filed a notice of appeal. (ECF No. 35.)
Before the undersigned is a referral notice form the Ninth Circuit Court of
Appeals for the limited purpose of determining whether Plaintiff’s in forma pauperis
status should continue for the appeal. (ECF No. 38.)
“An appeal may not be taken in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The test for allowing an appeal
in forma pauperis is easily met; the good faith requirement is satisfied if the appellant

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seeks review of any issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51
(9th Cir. 1977) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)) (quotation
marks omitted); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir.
2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma
pauperis as a whole). An action is frivolous “where it lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, the term
“frivolous”, as used in § 1915 and when applied to a complaint, “embraces not only the
inarguable legal conclusion, but also the fanciful factual allegation.” Id.
For the reasons stated in the January 20, 2015, Order granting Defendants’
motion to dismiss, Plaintiff’s complaint is untimely since it was brought nearly four years
after the conclusion of the statute of limitations, and there are no grounds justifying
equitable tolling. Plaintiff’s motion for reconsideration was denied because it did present
any new facts or argument. Plaintiff's appeal is therefore frivolous because it “lacks any
arguable basis in law or fact.” See Neitzke, 490 U.S. at 325. Thus, the Court certifies
that Plaintiff's appeal is not taken in good faith.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s in forma pauperis status is REVOKED; and
2. The Clerk of Court is DIRECTED to notify the Ninth Circuit Court of Appeals

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that the Court certifies, pursuant to Rule 24(a) (3)(A) of the Federal Rules of

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Appellate Procedure, that Plaintiff's appeal is frivolous and not taken in good

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faith.

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Dated:

January 19, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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