Lipsey v. SATF Prisons AD-Seg Property Officers, et al.

Filing 47

ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH re 46 signed by Magistrate Judge Sheila K. Oberto on 6/6/2017. (Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHRISTOPHER LIPSEY, 10 11 12 13 14 Plaintiff, Case No. 1:15-cv-00691-SKO (PC) Appeal No. 17-16116 ORDER FINDING APPEAL NOT TAKEN IN GOOD FAITH v. SATF PRISONS AD-SEG PROPERTY OFFICERS, et al., (Doc. 46) Defendants. 15 Plaintiff, Christopher Lipsey, is a state prisoner proceeding pro se and in forma pauperis 16 in this civil rights action which he filed pursuant to 42 U.S.C. § 1983. On April 20, 2017, the 17 Court dismissed the action without leave to amend. (Docs. 41, 42.) Plaintiff filed a notice of 18 appeal on May 8, 2017, (Doc. 43) and on June 1, 2017, the United States Court of Appeals for the 19 Ninth Circuit referred the matter to this court for a determination, under Federal Rule of 20 Appellate Procedure 24(a)(3)(A), whether the appeal is frivolous or taken in bad faith (Doc. 46). 21 An appeal is taken in good faith if the appellant seeks review of any issue that is not 22 frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United 23 States, 369 U.S. 438, 445, 82 S.Ct. 917 (1962); see also Hooker v. American Airlines, 302 F.3d 24 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed 25 in forma pauperis as a whole). The request of an indigent for leave to appeal in forma pauperis 26 must be allowed unless “the issues raised are so frivolous that the appeal would be dismissed in 27 the case of a non-indigent litigant.” Ellis v. United States, 356 U.S. 674, 675 (1958). 28 1 1 The Court dismissed this action on the ground that, after multiple opportunities to amend, 2 claim nos. 1-3 in Plaintiff’s Second Amended Complaint set forth no cognizable claims under 3 section 1983 and were dismissed with prejudice, and claim no. 4 exceeded the scope of leave to 4 amend, resulting in dismissal without prejudice. (Doc. 41.) Plaintiff does not identify any 5 legitimate grounds for appeal. The Court can discern no basis for Plaintiff’s appeal other than his 6 disagreement with the ruling, which does not suffice to demonstrate good faith. 7 Accordingly: 8 1. 9 Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not taken in good faith; and 10 2. 11 Pursuant to Fed. R. App. P. 24(a)(4)(B), the Clerk of the Court shall serve this order on Plaintiff and the Court of Appeals for the Ninth Circuit. 12 13 14 IT IS SO ORDERED. Dated: June 6, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 .

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