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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY,

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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.

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Plaintiff, Christopher Lipsey, is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action which he filed pursuant to 42 U.S.C. § 1983. On April 20, 2017, the
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Court dismissed the action without leave to amend. (Docs. 41, 42.) Plaintiff filed a notice of
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appeal on May 8, 2017, (Doc. 43) and on June 1, 2017, the United States Court of Appeals for the
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Ninth Circuit referred the matter to this court for a determination, under Federal Rule of
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Appellate Procedure 24(a)(3)(A), whether the appeal is frivolous or taken in bad faith (Doc. 46).
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An appeal is taken in good faith if the appellant seeks review of any issue that is not
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frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United
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States, 369 U.S. 438, 445, 82 S.Ct. 917 (1962); see also Hooker v. American Airlines, 302 F.3d
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1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed
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in forma pauperis as a whole). The request of an indigent for leave to appeal in forma pauperis
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must be allowed unless “the issues raised are so frivolous that the appeal would be dismissed in

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the case of a non-indigent litigant.” Ellis v. United States, 356 U.S. 674, 675 (1958).
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The Court dismissed this action on the ground that, after multiple opportunities to amend,

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claim nos. 1-3 in Plaintiff’s Second Amended Complaint set forth no cognizable claims under

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section 1983 and were dismissed with prejudice, and claim no. 4 exceeded the scope of leave to

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amend, resulting in dismissal without prejudice. (Doc. 41.) Plaintiff does not identify any

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legitimate grounds for appeal. The Court can discern no basis for Plaintiff’s appeal other than his

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disagreement with the ruling, which does not suffice to demonstrate good faith.

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Accordingly:

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Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not
taken in good faith; and

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2.

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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.

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IT IS SO ORDERED.
Dated:

June 6, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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