Hunt v. Matevousian et al

Filing 50

ORDER REGARDING In Forma Pauperis Status on Appeal signed by Chief Judge Lawrence J. O'Neill on 1/14/2018. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE HUNT, 12 13 14 15 Plaintiff, v. Case No. 1:16-cv-01560-LJO-BAM (PC) Appeal No. 18-17464 ORDER REGARDING IN FORMA PAUPERIS STATUS ON APPEAL MATEVOUSIAN, et al., (ECF No. 49) Defendants. 16 17 Plaintiff Maurice Hunt (“Plaintiff”), a federal prisoner proceeding pro se and in forma 18 pauperis, initiated this civil rights action pursuant to Bivens v. Six Unknown Named Agents of 19 Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 20 By notice entered January 8, 2019, the United States Court of Appeals for the Ninth 21 Circuit referred this matter to the District Court for the limited purpose of determining whether in 22 forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken 23 in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 24 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court 25 finds the appeal to be frivolous). 26 Permitting litigants to proceed in forma pauperis is a privilege, not a right. Franklin v. 27 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); Williams v. Field, 394 F.2d 329, 332 (9th Cir. 28 1968), cert. denied, 393 U.S. 891 (1968); Williams v. Marshall, 795 F.Supp. 978, 978–79 (N.D. 1 1 Cal. 1992). A federal court may dismiss a claim filed in forma pauperis before service if it is 2 satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2); see Sully v. Lungren, 3 842 F. Supp. 1230, 1231 (N.D. Cal. 1994). If a plaintiff with in forma pauperis status brings a 4 case without arguable substance in law and fact, the court may declare the case frivolous. 5 Franklin, 745 F.2d at 1227. 6 On November 17, 2017, the assigned Magistrate Judge issued a screening order finding 7 that Plaintiff had stated some cognizable claims arising from two different events, and that those 8 claims were improperly joined in this action. The order granted Plaintiff leave to file a first 9 amended complaint in compliance with the applicable joinder rules. (ECF No. 16.) 10 Plaintiff then requested clarification of the screening order, specifically requesting that the 11 Court consider the potential prejudice to Plaintiff of dismissing this action, and sua sponte 12 severing the improperly joined claims. (ECF No. 17.) The Magistrate Judge provided such 13 clarification in its December 18, 2017 order. That order explained that Plaintiff must file a first 14 amended complaint to pursue claims in this action, and the Court would at that time conduct the 15 appropriate prejudice analysis and address the disposition of any improperly joined claims. The 16 order also noted the Supreme Court’s recent decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), 17 but expressed no opinion at that time whether a Bivens remedy would be available to Plaintiff 18 under that standard. Plaintiff was granted a second opportunity to file an amended complaint. 19 (ECF No. 18.) 20 On January 8, 2018, Plaintiff filed a notice of appeal. (ECF No. 19.) As no final order 21 had been entered in this action, the appeal was treated as an interlocutory appeal. Thus, when 22 Plaintiff failed to file a first amended complaint by the applicable deadline, the Magistrate Judge 23 issued findings and recommendations to dismiss this action, without prejudice, due to Plaintiff’s 24 failure to obey a court order and failure to prosecute. (ECF No. 22.) On February 9, 2018, 25 Plaintiff objected, arguing that he believed in good faith that the filing of his notice of appeal 26 divested the Court of jurisdiction over this action, and he was therefore not required to file an 27 amended complaint. (ECF No. 23.) 28 /// 2 1 As Plaintiff’s appeal was thereafter dismissed by the Court of Appeals for the Ninth 2 Circuit for lack of jurisdiction, (ECF No. 24), the Court found it appropriate to vacate the findings 3 and recommendations and grant Plaintiff a final opportunity to file a first amended complaint, 4 (ECF No. 25). 5 6 Plaintiff then filed a motion again requesting that the Court sever any claims it considered improperly joined. (ECF No. 27.) On June 15, 2018, the Magistrate Judge determined that, in light of Plaintiff’s most recent 7 8 motion, it was apparent that Plaintiff did not wish to file a first amended complaint. Therefore, 9 the Magistrate Judge vacated the November 17, 2017 screening order and issued an amended 10 screening order and findings and recommendations to dismiss this action for failure to state a 11 claim. (ECF No. 29.) Despite two extensions of time, no objections were filed. On October 1, 12 2018, the findings and recommendations were adopted in full, and judgment was entered 13 accordingly the same day. (ECF Nos. 39, 40.) 14 Plaintiff filed two motions to reopen this matter. First, Plaintiff argued that he had mailed 15 objections to the findings and recommendations, but the Court had apparently not received them. 16 (ECF No. 41.) The Court found no evidence of the preparing or mailing of the objections, 17 beyond Plaintiff’s vague and unspecific assertions, and therefore found no good cause to grant 18 reconsideration of the dismissal. (ECF No. 42.) Plaintiff then argued that the Ninth Circuit case 19 Rodriguez v. Swartz, 899 F.3d 719, 2018 U.S. App. Lexis 21930 (9th Cir. 2018), provided the 20 proper interpretation of the Ziglar standard with respect to this case. (ECF No. 43.) The motion 21 was again denied, as the Court found that Rodriguez was not applicable to the facts present in this 22 action, and therefore presented no new grounds that would warrant reconsideration. (ECF No. 23 44.) 24 Throughout this action, Plaintiff was granted multiple opportunities to file an amended 25 complaint curing the deficiencies identified by the Court’s orders. Once it became apparent that 26 Plaintiff had no interest in filing an amended complaint, the Court re-screened the original 27 complaint using the applicable legal standards set forth in Ziglar. The Court again found that 28 Plaintiff had failed to state a cognizable claim, and Plaintiff failed to file any objections before 3 1 dismissal of this action. Even after filing two separate motions for reconsideration, Plaintiff has 2 been unable to present any procedural or substantive basis to reopen this action. As such, 3 dismissal of this action was entirely appropriate. 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. The appeal is declared frivolous and not taken in good faith; 6 2. Pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in forma pauperis 7 in Appeal No. 18-17464, filed December 17, 2018; 8 3. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), this order serves as notice to the 9 parties and the United States Court of Appeals for the Ninth Circuit of the finding that 10 11 12 Plaintiff is not entitled to proceed in forma pauperis for this appeal; and 4. The Clerk of the Court is directed to serve a copy of this order on the parties and the United States Court of Appeals for the Ninth Circuit. 13 14 15 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ January 14, 2019 UNITED STATES CHIEF DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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