Berry v. Yosemite Community College District et al

Filing 93

ORDER re IFP Status on Appeal signed by Magistrate Judge Erica P. Grosjean on 10/15/2019. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-00411-LJO-EPG

DEBRA BERRY,
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Plaintiff,
v.

ORDER RE: IFP STATUS ON APPEAL
(ECF NO. 92)

YOSEMITE COMMUNITY COLLEGE
DISTRICT, et al.,
Defendants.
By notice entered October 7, 2019, the United States Court of Appeals for the Ninth

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Circuit referred this matter to the District Court for the limited purpose of determining whether

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the in forma pauperis status of Plaintiff Debra Berry (“Plaintiff”) should continue for this appeal

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or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also

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Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).

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Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v.

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Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir.

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1968), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D.

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Cal. 1992). A federal court may dismiss a claim filed in forma pauperis prior to service if it is

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satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren,
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842 F.Supp. 1230, 1231 (N.D. Cal. 1994). A claim is ‘frivolous’ when it is without ‘basis in law

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or fact,’ and ‘malicious’ when it is ‘filed with the intention or desire to harm another.’” Knapp v.

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Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). A finding of frivolity in this context is equivalent to

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finding a lack of good faith. Id. at 1110. A lack of good faith can be inferred where “plaintiffs

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seek to exploit the court system solely for delay or to vex defendants.” Vega v. JPMorgan Chase

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Bank, N.A., 654 F.Supp.2d 1104, 1121 (E.D. Cal. 2009).
The Court does not find that Plaintiff takes the instant appeal in bad faith. This is not a

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situation where “plaintiffs seek to exploit the court system solely for delay or to vex defendants.”

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Id.

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Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff is entitled to proceed in forma pauperis in Appeal No. 19-16932, filed on

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September 30, 2019;

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2. This Order serves as notice to the parties and the United States Court of Appeals

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for the Ninth Circuit of the finding that Plaintiff is entitled to proceed in forma

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pauperis for this appeal; and
3. The Clerk of the Court is directed to serve a copy of this Order on Plaintiff and the

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United States Court of Appeals for the Ninth Circuit.

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IT IS SO ORDERED.
Dated:

October 15, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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