Bontemps v. Sotak et al

Filing 146

ORDER signed by District Judge Morrison C. England, Jr on 5/15/19 REVOKING Plaintiff's in forma pauperis status; the Clerk of Court is directed to serve a copy of this Order on Plaintiff and on the Ninth Circuit Court of Appeals.(cc USCA)(Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GREGORY C. BONTEMPS,

12

No. 2:09-cv-02115-MCE-EFB P

Plaintiff,

13

v.

14

SOTAK, et al.,

15

ORDER

Defendants.

16
17

On April 9, 2019, the Court dismissed this action without further leave to amend.

18

ECF No. 137. On April 22, 2019, Plaintiff, who had proceeded without counsel and in

19

forma pauperis in the District Court, filed a Notice of Appeal. ECF No. 140. Thereafter,

20

on April 30, 2019, the Ninth Circuit Court of Appeals referred this matter to the District

21

Court for the limited purpose of determining whether in forma pauperis status should

22

continue for the appeal, or whether the appeal is frivolous or taken in bad faith. ECF

23

No. 144.

24

“An appeal may not be taken in forma pauperis if the trial court certifies in writing

25

that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3); see also Hooker v. American

26

Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status

27

appropriate where district court finds the appeal to be frivolous). The good faith

28

standard under 28 U.S.C. § 1915 is an objective one. Coppedge v. United States,
1

1

369 U.S. 438, 445 (1962). A plaintiff satisfies the “good faith” requirement if he or she

2

seeks review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551

3

(9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445).

4

For the reasons stated in the December 12, 2018 Findings and

5

Recommendations (see ECF No. 134), adopted by this Court on April 9, 2019 (ECF

6

No. 137), the Court finds that the instant appeal is frivolous. The Court thus certifies that

7

Plaintiff’s appeal is not taken in good faith and concludes that Plaintiff’s in forma

8

pauperis status should not continue for purposes of the appeal.

9

Accordingly, IT IS HEREBY ORDERED that:

10

1. Plaintiff’s in forma pauperis status is REVOKED.

11

2. The Clerk of Court is directed to serve a copy of this Order on Plaintiff and on

12

the Ninth Circuit Court of Appeals.

13

IT IS SO ORDERED.

14

Dated: May 15, 2019

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2