Scott v. Sutton, et al.
Filing
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AMENDED ORDER finding Appeal Taken in Good Faith 19 , 17 signed by District Judge Dale A. Drozd on 2/8/2018. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TROY A. SCOTT,
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No. 1:17-cv-00710-DAD-MJS
Plaintiff,
v.
AMENDED ORDER FINDING APPEAL
TAKEN IN GOOD FAITH
JOHN SUTTON, et al.,
(Doc. No. 17)
Defendants.
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Plaintiff Troy A. Scott is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action brought pursuant to 42 U.S.C. § 1983. On December 20, 2017, the court
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adopted the assigned magistrate judge’s findings and recommendations and dismissed this action
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with prejudice, concluding that all of plaintiff’s claims failed to state a plausible claim for relief.
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(Doc. Nos. 10, 12.) Plaintiff then filed a notice of appeal on January 19, 2018. (Doc. No. 14.)
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On February 1, 2018, the United States Court of Appeals for the Ninth Circuit referred the matter
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to this court for a determination of whether the appeal is frivolous or taken in bad faith under
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Federal Rule of Appellate Procedure 24(a)(3)(A). (Doc. No. 17.)
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An appeal is taken in good faith if the appellant seeks review of any issue that is not
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frivolous. Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (citing Coppedge v. United
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States, 369 U.S. 438, 445 (1962)); see also Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir.
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2002) (if at least one issue or claim is non-frivolous, the appeal must proceed in forma pauperis
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as a whole). A frivolous action is one “lacking [an] arguable basis in law or in fact.” Franklin v.
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Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984). “[T]o determine that an appeal is in good faith, a
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court need only find that a reasonable person could suppose that the appeal has some merit.”
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Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).
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Here, the court dismissed plaintiff’s claims finding that he had failed to allege sufficient
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facts that would entitle him to relief. Although it appears likely that plaintiff’s appeal reflects a
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mere disagreement with the court’s ruling, he has litigated this action in a responsible fashion and
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the court is unwilling to conclude that his appeal is wholly frivolous.
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For these reasons:
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Pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), the court finds that
the appeal has been taken in good faith;
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Pursuant to Federal Rule of Appellate Procedure 24(a)(4)(B), the Clerk of the
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Court is directed to serve this order on plaintiff and the U.S. Court of Appeals for
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the Ninth Circuit;
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3.
The court’s prior order (Doc. No. 19) is withdrawn; and
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4.
Plaintiff’s motion/declaration in support to proceed in forma pauperis (Doc. No.
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IT IS SO ORDERED.
Dated:
February 8, 2018
UNITED STATES DISTRICT JUDGE
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