Everett v. Black

Filing 26

NOTICE and ORDER Finding That Plaintiff is Not Entitled to Proceed In Forma Pauperis on Appeal, signed by District Judge Anthony W. Ishii on 8/17/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD EVERETT,

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Plaintiff,
v.
M. BLACK,

CASE NO. 1:16-cv-01285-AWI-MJS (PC)
NOTICE AND ORDER FINDING THAT
PLAINTIFF IS NOT ENTITLED TO
PROCEED IN FORMA PAUPERIS ON
APPEAL

Defendant.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed
pursuant to 42 U.S.C. § 1983.

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On May 11, 2017, the Magistrate Judge discharged the Order to Show Cause and

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issued findings and recommendations (“F&R”) to dismiss Plaintiff’s first amended

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complaint with prejudice for failure to state a claim. (ECF No. 18.) Specifically, the F&R

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found that Plaintiff had raised essentially the same claims as the case at bar. See id.

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The prior lawsuit was dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994),

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and that judgment was final. See id. The F&R concluded that the determinations made

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in the prior case barred the case at bar.

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After considering objections from Plaintiff, the Court adopted the F&R in full and
held that Plaintiff’s claims were barred by Heck and claim preclusion. (ECF No. 21.)
Plaintiff filed an appeal on July 24, 2017.

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On August 11, 2017, the Ninth Circuit the Court of Appeals referred the matter

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back to this Court for the limited purpose of determining whether in forma pauperis

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should continue for this appeal.

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“An appeal may not be taken in forma pauperis if the trial court certifies in writing

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that it is not taken in good faith." 28 U.S.C. § 1915(a)(3); see also Hooker v. American

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Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is

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appropriate where the district court finds the appeal to be frivolous).

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allowing an appeal in forma pauperis is easily met; the good faith requirement is satisfied

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if the appellant seeks review of any issue that is not frivolous. Gardner v. Pogue, 558

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F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United States, 369 U.S. 438, 445

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(1962)); see also Hooker, 302 F.3d at 1092.

The test for

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In this case, an argument that would lead to the reversal of the dismissal order is

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not apparent. Plaintiff’s objections to the F&R did not explain why res judicata would not

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apply based on the final dismissal order in Everett v. Brazelton, Eastern District of

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California Docket No. 1:12-cv-680 BAM. (ECF No. 20) Plaintiff did correctly object that

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the Ninth Circuit partially reversed Everett v. Brazeton regarding the application of Heck.

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However, on remand, additional evidence that was not presented to the Ninth Circuit

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demonstrated that Heck barred Plaintiff’s claims. Plaintiff did not adequately discuss the

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additional evidence in Everett v. Brazelton or that case’s second application of Heck.

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Therefore, given the apparent absence of viable arguments, the Court concludes that an

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appeal of the dismissal in this case is frivolous and in form pauperis status should not

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continue.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:
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Pursuant to 28 U.S.C. § 1915(g), Plaintiff is not entitled to proceed in forma
pauperis on the appeal filed on July 24, 2017;

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Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(C), this order serves as
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notice to the parties and the Ninth Circuit Court of Appeals of the finding that

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Plaintiff is not entitled to proceed in forma pauperis for this appeal; and

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The Clerk of the Court shall serve a copy of this order on Plaintiff and the Ninth
Circuit Court of Appeals.

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IT IS SO ORDERED.
Dated: August 17, 2017
SENIOR DISTRICT JUDGE

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