Phanvongkham et al v. Moultrie

Filing 19

ORDER REVOKING IN FORMA PAUPERIS STATUS ON APPEAL re 18 USCA Order for Appeal No. 17-16458 signed by Chief Judge Lawrence J. O'Neill on 7/27/2017. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SISOMPHONE PHANVONGKHAM and FELICIA NAVARRO, 10 11 12 13 Plaintiffs, vs. MELISSA MOULTRIE, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-01032-LJO-BAM Appeal No. 17-16458 ORDER REVOKING IN FORMA PAUPERIS STATUS (ECF No. 18) 14 15 By notice entered July 21, 2017, the United States Court of Appeals for the Ninth Circuit 16 referred this matter to the District Court for the limited purpose of determining whether in forma 17 pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad 18 faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 19 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the District Court 20 finds the appeal to be frivolous). 21 Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. 22 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir., 23 cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978-79 (N.D. Cal. 24 1992). A federal court may dismiss a claim filed in forma pauperis prior to service if it is 25 satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren, 26 842 F. Supp. 1230, 1231 (N.D. Cal. 1994). If a plaintiff with in forma pauperis status brings a 27 28 1 1 2 3 4 5 6 7 8 9 10 11 12 13 case without arguable substance in law and fact, the court may declare the case frivolous. Franklin, 745 F.2d at 1227. Here, Plaintiff is appealing the Court’s dismissal of this action for lack of subject matter jurisdiction. The Court also recommended dismissal because Plaintiffs’ Complaint, challenging an eviction dispute litigated in the Fresno County Superior Court, was barred by the RookerFeldman doctrine. See Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 858-59 (9th Cir. 2008) (federal district courts have no authority to directly or indirectly review state court decisions) (citing the “Rooker-Feldman” doctrine). Although the Court granted Plaintiffs leave to amend, Plaintiffs were unable to cure these deficiencies. There is no basis for federal jurisdiction in this case, and an appeal of that decision would be frivolous. IFP status should not continue on appeal. Accordingly, IT IS HEREBY ORDERED that: 1. This matter is declared frivolous; 2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiffs are not entitled to proceed in forma pauperis in Appeal No. 17-16458, filed July 14, 2017; 14 15 3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this Order serves as notice to the parties and the United States Court of Appeals for the Ninth Circuit of the 16 finding that Plaintiffs are not entitled to proceed in forma pauperis for this appeal; 17 and 18 19 4. The Clerk of the Court is directed to serve a copy of this Order on Plaintiffs and the United States Court of Appeals for the Ninth Circuit. 20 21 22 23 24 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ July 27, 2017 UNITED STATES CHIEF DISTRICT JUDGE 25 26 27 28 2

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