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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RONALD EVERETT, 10 11 12 13 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. 14 15 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. 18 On May 11, 2017, the Magistrate Judge discharged the Order to Show Cause and 19 issued findings and recommendations (“F&R”) to dismiss Plaintiff’s first amended 20 complaint with prejudice for failure to state a claim. (ECF No. 18.) Specifically, the F&R 21 found that Plaintiff had raised essentially the same claims as the case at bar. See id. 22 The prior lawsuit was dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), 23 and that judgment was final. See id. The F&R concluded that the determinations made 24 in the prior case barred the case at bar. 25 26 27 28 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. 1 On August 11, 2017, the Ninth Circuit the Court of Appeals referred the matter 2 back to this Court for the limited purpose of determining whether in forma pauperis 3 should continue for this appeal. 4 “An appeal may not be taken in forma pauperis if the trial court certifies in writing 5 that it is not taken in good faith." 28 U.S.C. § 1915(a)(3); see also Hooker v. American 6 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is 7 appropriate where the district court finds the appeal to be frivolous). 8 allowing an appeal in forma pauperis is easily met; the good faith requirement is satisfied 9 if the appellant seeks review of any issue that is not frivolous. Gardner v. Pogue, 558 10 F.2d 548, 550-51 (9th Cir. 1977) (citing Coppedge v. United States, 369 U.S. 438, 445 11 (1962)); see also Hooker, 302 F.3d at 1092. The test for 12 In this case, an argument that would lead to the reversal of the dismissal order is 13 not apparent. Plaintiff’s objections to the F&R did not explain why res judicata would not 14 apply based on the final dismissal order in Everett v. Brazelton, Eastern District of 15 California Docket No. 1:12-cv-680 BAM. (ECF No. 20) Plaintiff did correctly object that 16 the Ninth Circuit partially reversed Everett v. Brazeton regarding the application of Heck. 17 However, on remand, additional evidence that was not presented to the Ninth Circuit 18 demonstrated that Heck barred Plaintiff’s claims. Plaintiff did not adequately discuss the 19 additional evidence in Everett v. Brazelton or that case’s second application of Heck. 20 Therefore, given the apparent absence of viable arguments, the Court concludes that an 21 appeal of the dismissal in this case is frivolous and in form pauperis status should not 22 continue. 23 24 ORDER 25 26 Accordingly, IT IS HEREBY ORDERED that: 1. 27 28 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; 2. Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(C), this order serves as 2 1 notice to the parties and the Ninth Circuit Court of Appeals of the finding that 2 Plaintiff is not entitled to proceed in forma pauperis for this appeal; and 3 4 3. The Clerk of the Court shall serve a copy of this order on Plaintiff and the Ninth Circuit Court of Appeals. 5 6 7 IT IS SO ORDERED. Dated: August 17, 2017 SENIOR DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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