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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL ANGELO LENA, 10 11 12 13 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. 14 15 Plaintiff, Michael Angelo Lena, is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action which he filed pursuant to 42 U.S.C. § 1983. On June 1, 2017, 17 the Court dismissed the action and judgment was entered that same day. (Docs. 20, 21.) Plaintiff 18 filed a notice of appeal on June 19, 2017, (Doc. 22) and on July 12, 2017, the United States Court 19 of Appeals for the Ninth Circuit referred the matter to this court for a determination, under 20 Federal Rule of Appellate Procedure 24(a)(3)(A), whether the appeal is frivolous or taken in bad 21 faith (Doc. 25). 22 An appeal is taken in good faith if the appellant seeks review of any issue that is not 23 frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United 24 States, 369 U.S. 438, 445, 82 S.Ct. 917 (1962); see also Hooker v. American Airlines, 302 F.3d 25 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, the appeal must proceed 26 in forma pauperis as a whole). The request of an indigent for leave to appeal in forma pauperis 27 must be allowed unless “the issues raised are so frivolous that the appeal would be dismissed in 28 1 1 2 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 3 amended complaint or notify the court of his desire to proceed on claims found cognizable and 4 provide identifying information against Doe defendants, Plaintiff failed to do either. (Doc. 20.) 5 Plaintiff does not identify any legitimate grounds for appeal. The Court can discern no basis for 6 Plaintiff’s appeal other than his mere disagreement with the order that screened his Complaint 7 and gave him leave to amend or to proceed on the claims found cognizable, which does not 8 suffice to demonstrate good faith. 9 10 Accordingly: 1. 11 12 Pursuant to Fed. R. App. P. 24(a)(3)(A), the Court finds that the appeal was not taken in good faith; and 2. 13 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. 14 15 16 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ July 14, 2017 UNITED STATES CHIEF DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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