Greene v. Olvera et al
ORDER Certifying Plaintiff's Appeal 15 as Frivolous, signed by Chief Judge Lawrence J. O'Neill on 5/1/17. (Gonzalez, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MARVELLOUS AFRIKAN WARRIOR,
CASE NO. 1:16-cv-01605-LJO-MJS (PC)
ORDER CERTIFYING PLAINTIFF’S
APPEAL AS FRIVOLOUS
(ECF No. 19)
LAUREL OLVERA, et al.,
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. On January 5, 2017, Plaintiff’s first
amended complaint was dismissed with leave to amend. (ECF No. 7.) After Plaintiff
failed to file an amended complaint, he was ordered to show cause by his case should
not be dismissed for failure to obey a Court order. (ECF No. 10.) When Plaintiff again
failed to respond, his case was dismissed with prejudice for failure to state a claim,
failure to obey a Court order, and failure to prosecute, and the matter was closed. (ECF
Nos. 11, 12.)
On April 19, 2017, Plaintiff filed a notice of appeal to the Ninth Circuit. (ECF No.
15.) On April 28, 2017, the Ninth Circuit referred this matter back to this Court for the
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
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
parties and Ninth Circuit Court of Appeals of the finding that Plaintiff is not
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
Court of Appeals.
IT IS SO ORDERED.
/s/ Lawrence J. O’Neill _____
May 1, 2017
UNITED STATES CHIEF DISTRICT JUDGE
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