Smith v. Weiss et al

Filing 68

ORDER Regarding 67 In Forma Pauperis Status on Appeal signed by District Judge Dale A. Drozd on 04/09/2021. (Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LAWRENCE CHRISTOPHER SMITH,

12
13
14
15

Plaintiff,
v.

No. 1:18-cv-00852-DAD-BAM (PC)
Appeal No. 21-15516
ORDER REGARDING IN FORMA PAUPERIS
STATUS ON APPEAL

WEISS, et al.,
(Doc. No. 67)
Defendants.

16
17
18
19

Plaintiff Lawrence Christopher Smith is a state prisoner who proceeded pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On December 11, 2020, the assigned magistrate judge issued findings and

20

recommendations recommending that defendants’ motion to dismiss/for terminating sanctions be

21

granted and that this case be dismissed with prejudice. (Doc. No. 58.) The magistrate judge

22

found that terminating sanctions were appropriate due to plaintiff’s bad faith conduct in refusing

23

to comply with his discovery obligations and needlessly multiplying court proceedings by filing

24

repetitious and voluminous filings. (Id.) The findings and recommendations were adopted in full

25

on March 5, 2021. (Doc. No. 62.) Judgment was entered accordingly the same date. (Doc. No.

26

63.) On March 22, 2021, plaintiff filed a notice of appeal. (Doc. No. 64.)

27

By notice entered April 1, 2021, the United States Court of Appeals for the Ninth Circuit

28

referred this matter to the District Court for the limited purpose of determining whether in forma
1

1

pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad

2

faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. Amer. Airlines, 302 F.3d 1091, 1092 (9th

3

Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court finds the

4

appeal to be frivolous).
For the reasons discussed below, the court certifies plaintiff’s appeal is not taken in good

5
6

faith, and his in forma pauperis status is revoked.

7

The Federal Rules of Appellate Procedure provide as follows:

8

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in
the district-court action . . . may proceed on appeal in forma pauperis without
further authorization, unless:

9
10

(A) the district court—before or after the notice of appeal is filed—certifies that
the appeal is not taken in good faith or finds that the party is not otherwise entitled
to proceed in forma pauperis and states in writing its reasons for the certification
or finding[.]

11
12
13

Fed. R. App. P. 24(a)(3)(A).
Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the

14
15

trial court certifies in writing that it is not taken in good faith.” The good faith standard is an

16

objective one, and good faith is demonstrated by when an individual “seeks appellate review of

17

any issue not frivolous.” See Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes

18

of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v.

19

Williams, 490 U.S. 319, 325 (1989).

20

A review of the record in this action and the declaration filed in support of the notice of

21

appeal reveals that plaintiff’s appeal is merely an effort to continue the same bad faith conduct

22

that resulted in this action being dismissed. Therefore, for the reasons stated in the magistrate

23

judge’s December 11, 2020 findings and recommendations, as adopted in full by this court on

24

March 5, 2021, the court certifies that plaintiff’s appeal is not taken in good faith.
Accordingly,

25

1. Pursuant to 28 U.S.C. § 1915(a)(3), plaintiff is not entitled to proceed in forma pauperis

26

in Appeal No. 21-15516;

27
28

/////
2

1

2. The Clerk of the Court is directed to notify the United States Court of Appeals for the

2

Ninth Circuit that this court certifies, pursuant to Federal Rule of Appellate Procedure

3

24(a)(3)(A), that plaintiff’s appeal is not taken in good faith, and he must therefore seek

4

further authorization from the Court of Appeals pursuant to Rule 24(a)(5) to obtain leave

5

to proceed in forma pauperis on appeal; and

6
7
8
9
10

3. 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.
IT IS SO ORDERED.
Dated:

April 9, 2021
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3