Shehee v. Flores, et al.

Filing 28

ORDER Denying 24 Plaintiff's Motion to Proceed In Forma Pauperis on Appeal, re 27 , signed by Magistrate Judge Gary S. Austin on 4/15/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY ELL SHEHEE,

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1:14-cv-00589-LJO-GSA-PC
Appeal case no. 15-15716

Plaintiff,

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vs.

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FLORES, et al.,

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ORDER DENYING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS ON APPEAL
(Docs. 24, 27.)

Defendants.

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I.

BACKGROUND

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Gregory Ell Shehee (“Plaintiff”) is a Fresno County Jail inmate, proceeding pro se with

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this civil rights action pursuant to 42 U.S.C. § 1983. This case was dismissed by the court on

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April 2, 2015, with prejudice, for failure to state a claim upon which relief may be granted

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under § 1983, and judgment was entered. (Docs. 21, 22.)

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On April 8, 2015, Plaintiff appealed the district court’s decision to the Ninth Circuit

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court of appeals, and filed a motion for leave to proceed in forma pauperis on appeal. (Docs.

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23, 24.) On April 14, 2015, the Ninth Circuit referred the case to the district court for the

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limited purpose of determining whether in forma pauperis status should continue for this appeal

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or whether the appeal is frivolous or taken in bad faith. (Doc. 27.)
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II.

IN FORMA PAUPERIS STATUS ON APPEAL

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“An appeal may not be taken in forma pauperis if the trial court certifies in writing that

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it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The test for allowing an appeal in forma

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pauperis is easily met; the good faith requirement is satisfied if the appellant seeks review of

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any issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing

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Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917 (1962)) (quotation marks omitted);

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see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (if at least one issue

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or claim is non-frivolous, the appeal must proceed in forma pauperis as a whole). An action is

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frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490

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U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). In other words, the term “frivolous”,

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as used in § 1915 and when applied to a complaint, “embraces not only the inarguable legal

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conclusion, but also the fanciful factual allegation.” Id.
Plaintiff’s appeal lacks any arguable basis in law or fact.

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The court dismissed

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Plaintiff’s complaint for failure to state a claim, based on his failure to comply with the court’s

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order dismissing the complaint for failure to state a claim, with leave to amend. (Doc. 21.)

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Plaintiff argues that he could not timely file documents because he lacked access to his

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documents at the Fresno County Jail. However, according to court records, Plaintiff was not

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incarcerated at the jail until mid-February 2015, long after the deadline to amend his complaint

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had expired. (Court Record.) Upon re-review of the complaint, the court finds Plaintiff’s

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allegations to be vague. Plaintiff fails to specifically charge each defendant with conduct

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indicating that he or she deprived Plaintiff of a protected interest. Therefore, Plaintiff fails to

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state a claim against any of the defendants under § 1983. Plaintiff was granted an opportunity

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to amend the complaint, but he failed to do so. Thus, the district court finds Plaintiff’s appeal

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to be frivolous, and Plaintiff’s motion to proceed in forma pauperis on appeal shall be denied.

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion to proceed in forma pauperis on appeal, filed on April 8, 2015,
is DENIED; and
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The Clerk is directed to serve a copy of this order on the Ninth Circuit Court of
Appeals.

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IT IS SO ORDERED.
Dated:

April 15, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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