Kandi v. Management and Training Corporation et al

Filing 46

ORDER Regarding In Forma Pauperis Status on Appeal, signed by Chief Judge Lawrence J. O'Neill on 1/11/19. USCA Appeal No. 18-17394. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMIEL A. KANDI,

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Plaintiff,
v.

Case No. 1:16-cv-00794-LJO-BAM (PC)
Appeal No. 18-17394
ORDER REGARDING IN FORMA PAUPERIS
STATUS ON APPEAL

MANAGEMENT AND TRAINING
CORP., et al.,

(ECF No. 45)

Defendants.

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Plaintiff Emiel A. Kandi (“Plaintiff”), a federal prisoner proceeding pro se and in forma

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pauperis, initiated this civil rights action pursuant to Bivens v. Six Unknown Named Agents of

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Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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On April 18, 2018, the assigned Magistrate Judge issued findings and recommendations

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recommending dismissal of Plaintiff’s federal claims for failure to state a claim upon which relief

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may be granted, and dismissal of Plaintiff’s state law claims, if any. (ECF No. 36.) On May 3,

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2018, Plaintiff filed objections and lodged a proposed third amended complaint. (ECF Nos. 38,

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39.) The Court reviewed Plaintiff’s objections and the lodged third amended complaint. Plaintiff

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argued that, although he is a federal prisoner, he was not bringing any claims pursuant to Bivens

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v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), but rather the

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Bane Act was the sole jurisdictional basis for his claims. Noting that the Bane Act is a state law,

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and therefore does not confer original jurisdiction on federal courts, the Court found that Plaintiff
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failed to state a cognizable claim for relief under federal law, and further declined to exercise

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supplemental jurisdiction over any potential state law claims. The Court dismissed this action on

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November 29, 2018, and judgment was entered the same date. (ECF Nos. 40, 41.)

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By notice entered December 21, 2018, 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 in

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forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken

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in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091,

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1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court

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finds the appeal to be frivolous).

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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 before 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). If a plaintiff with in forma pauperis status brings a

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case without arguable substance in law and fact, the court may declare the case frivolous.

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Franklin, 745 F.2d at 1227.

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As noted above, Plaintiff was granted multiple opportunities to file an amended complaint

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curing the deficiencies identified by the Court’s orders. Plaintiff was nevertheless unable to state

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a cognizable claim for relief under federal law, and explicitly disclaimed Bivens as a

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jurisdictional basis for his action. As such, the Court was left with no federal jurisdictional basis

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for this action, and dismissal for failure to state a claim was entirely appropriate.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. The appeal is declared frivolous and not taken in good faith;

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2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis

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in Appeal No. 18-17394, filed December 17, 2018;

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3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this order serves as notice to the

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parties and the United States Court of Appeals for the Ninth Circuit of the finding that
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Plaintiff is not entitled to proceed in forma pauperis for this appeal; and
4. The Clerk of the Court is directed to serve a copy of this order on the parties and the
United States Court of Appeals for the Ninth Circuit.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

January 11, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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