Vaden v. Dickenson et al
Filing
15
ORDER signed by Magistrate Judge Kendall J. Newman on 7/15/11 ORDERING that plaintiffs in forma pauperis status is REVOKED for purposes of appeal. (Dillon, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
ERNEST LEE VADEN,
11
Plaintiff,
12
13
No. 2:10-cv-1676 KJN P
vs.
KATHLEEN DICKENSON, et al.,
14
Defendants.
15
ORDER
/
16
Plaintiff is a state prisoner proceeding without counsel, in this action filed
17
pursuant to 42 U.S.C. § 1983. On June 9, 2011, this court dismissed this action for failure to
18
state a potentially cognizable claim.1 (Dkt. No. 6.) Plaintiff challenged a state regulation that
19
authorizes a prison to deny contact visits with minors to inmates convicted of murder. 15 C.C.R.
20
§ 3173.1(d). Discretion for granting an exception under the regulation lies with the prison’s
21
Institutional Classification Committee. Id. This court found that plaintiff had failed to state a
22
potentially cognizable federal constitutional claim because the challenged regulation is
23
reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89-90
24
(1987); accord, Valdez v. Woodford, 2007 WL 1848032, *5 (N.D. Cal. 2007). The court
25
1
26
Plaintiff consented to the jurisdiction of the magistrate judge for all purposes. (Dkt. No.
4.) See 28 U.S.C. § 636(c) and E.D. Cal. L. R. (“Local Rule”) 305(a).
1
1
concluded that amendment of the complaint would be futile, and dismissed plaintiff’s action
2
without leave to amend.
3
After entry of judgment, plaintiff filed a Notice of Appeal in the Ninth Circuit
4
Court of Appeals. (Dkt. Nos. 10, 11.) The Court of Appeals has now referred to this court the
5
limited question “whether in forma pauperis status should continue for this appeal or whether the
6
appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v.
7
American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of forma pauperis status is
8
appropriate where district court finds the appeal to be frivolous).” (Dkt. No. 13; duplicate filing
9
at Dkt. No. 14.)
10
Section 1915(a)(3), United States Code, title 28, provides that “[a]n appeal may
11
not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good
12
faith.” The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438,
13
445 (1962) (“‘good faith’ in this context must be judged by an objective standard,” and is
14
“demonstrated when [an appellant] seeks appellate review of any issue not frivolous”). Thus, a
15
plaintiff satisfies the “good faith” requirement if he “seeks review of any issue that is ‘not
16
frivolous.’” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir.1977) (quoting Coppedge, 369 U.S. at
17
445). A claim is legally frivolous when, in pertinent part, it is “based on an indisputably
18
meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
19
This action, and hence plaintiff’s appeal, is premised on plaintiff’s singular claim
20
that the challenged regulation has been unfairly applied to him. For the reasons previously stated
21
by this court, and summarized above, this claim is based on “an indisputably meritless legal
22
theory,” Neitzke, supra, 490 U.S. at 327, rendering plaintiff’s appeal frivolous. Plaintiff makes
23
no other claims. Cf. Hooker, supra, 302 F.3d at 1092 (leave to proceed in forma pauperis on
24
appeal must be granted if at least one claim is non-frivolous).
25
////
26
////
2
1
2
3
4
Accordingly, IT IS HEREBY ORDERED that plaintiff’s in forma pauperis status
is revoked for purposes of appeal.
SO ORDERED.
DATED: July 15, 2011
5
6
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
7
8
vade.1676.1915.app
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?