Greene v. Olvera et al

Filing 20

ORDER Certifying Plaintiff's Appeal 15 as Frivolous, signed by Chief Judge Lawrence J. O'Neill on 5/1/17. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARVELLOUS AFRIKAN WARRIOR, CASE NO. 1:16-cv-01605-LJO-MJS (PC) 10 Plaintiff, 11 12 13 ORDER CERTIFYING PLAINTIFF’S APPEAL AS FRIVOLOUS v. (ECF No. 19) LAUREL OLVERA, et al., Defendants. 14 15 16 17 18 Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil 19 rights action brought pursuant to 42 U.S.C. § 1983. On January 5, 2017, Plaintiff’s first 20 amended complaint was dismissed with leave to amend. (ECF No. 7.) After Plaintiff 21 failed to file an amended complaint, he was ordered to show cause by his case should 22 not be dismissed for failure to obey a Court order. (ECF No. 10.) When Plaintiff again 23 failed to respond, his case was dismissed with prejudice for failure to state a claim, 24 failure to obey a Court order, and failure to prosecute, and the matter was closed. (ECF 25 Nos. 11, 12.) 26 On April 19, 2017, Plaintiff filed a notice of appeal to the Ninth Circuit. (ECF No. 27 15.) On April 28, 2017, the Ninth Circuit referred this matter back to this Court for the 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 limited purpose of determining whether in forma pauperis status should continue during Plaintiff’s appeal, or whether the appeal was frivolous or taken in bad faith. After consideration, the Court concludes that the appeal is frivolous within the meaning of 28 U.S.C. § 1915(a)(3). Plaintiff’s first civil rights complaint was rambling, conclusory, and unclear, involved separate and unrelated matters, and failed to contain sufficient factual allegations to state any plausible claims. Plaintiff was informed of the pleading standards for his claims, yet failed to file an amended complaint correcting the identified deficiencies. Plaintiff’s case was dismissed not on the merits of his claims, but on the grounds that Plaintiff failed to comply with a Court order. To the extent Plaintiff wishes to appeal the dismissal for failure to obey a Court order, there is no appellate issue that has an arguable basis in law or fact that is apparent. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); see also In re Hawaii Corp., 796 F.2d 1139, 1144 (9th Cir. 1986). Therefore, the Court concludes that Plaintiff’s appeal is frivolous and that Plaintiff’s in forma pauperis status should not continue during appeal. See 28 U.S.C. § 1915(a)(3). Accordingly, IT IS HEREBY ORDERED that: 1. In accordance with 28 U.S.C. § 1915(a)(3), Plaintiff is not entitled to proceed in 18 19 forma pauperis in the appeal of this case; 2. As required by Fed. R. App. P. 24(a)(4), this Order serves as notice to the 20 parties and Ninth Circuit Court of Appeals of the finding that Plaintiff is not 21 22 entitled to proceed in forma pauperis for his appeal of this case; and 3. The Clerk is directed to serve a copy of this order on Plaintiff and Ninth Circuit 23 Court of Appeals. 24 25 26 27 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ May 1, 2017 UNITED STATES CHIEF DISTRICT JUDGE 28 2

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