Lena v. People of the State of California et al

Filing 26

ORDER Finding Appeal not Taken in Good Faith signed by Chief Judge Lawrence J. O'Neill on 07/14/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ANGELO LENA,

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Plaintiff,

Case No. 1:16-cv-01036-LJO-SKO (PC)
Appeal No. 17-16367
ORDER FINDING APPEAL NOT TAKEN
IN GOOD FAITH

v.
PEOPLE OF THE STATE OF
CALIFORNIA, et al.,

(Doc. 25)

Defendants.

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Plaintiff, Michael Angelo Lena, is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action which he filed pursuant to 42 U.S.C. § 1983. On June 1, 2017,
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the Court dismissed the action and judgment was entered that same day. (Docs. 20, 21.) Plaintiff
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filed a notice of appeal on June 19, 2017, (Doc. 22) and on July 12, 2017, the United States Court
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of Appeals for the Ninth Circuit referred the matter to this court for a determination, under
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Federal Rule of Appellate Procedure 24(a)(3)(A), whether the appeal is frivolous or taken in bad
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faith (Doc. 25).
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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).
The Court dismissed this action on the ground that, after multiple opportunities to file an

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amended complaint or notify the court of his desire to proceed on claims found cognizable and

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provide identifying information against Doe defendants, Plaintiff failed to do either. (Doc. 20.)

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Plaintiff does not identify any legitimate grounds for appeal. The Court can discern no basis for

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Plaintiff’s appeal other than his mere disagreement with the order that screened his Complaint

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and gave him leave to amend or to proceed on the claims found cognizable, which does not

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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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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:

/s/ Lawrence J. O’Neill _____

July 14, 2017

UNITED STATES CHIEF DISTRICT JUDGE
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