Armstead v. Virga et al

Filing 94

ORDER signed by District Judge Troy L. Nunley on 3/31/14 ORDERING that Plaintiff's in forma status 2 is REVOKED; The Clerk is directed to serve a copy of this order on the Ninth Circuit Court of Appeals.(Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES E. ARMSTEAD, 12 13 14 15 No. 2: 11-cv-1054 TLN KJN P Plaintiff, v. ORDER TIM VIRGA, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On February 19, 2014, this action was dismissed without prejudice. 19 Plaintiff appealed this decision to the Ninth Circuit Court of Appeals. 20 On March 21, 2014, the Ninth Circuit referred this action to this court to determine 21 whether plaintiff’s in forma pauperis status should continue for the appeal or whether the appeal 22 was frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American 23 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of forma pauperis status is appropriate 24 where district court finds the appeal to be frivolous). 25 This action was dismissed without prejudice based on plaintiff’s failure to file an 26 opposition to defendants’ motion for judgment on the pleadings despite having been granted 27 several opportunities to do so. (See ECF No. 85.) For these reasons, the court finds that 28 plaintiff’s appeal is frivolous. However, the undersigned notes that plaintiff’s underlying claims 1 1 were dismissed without prejudice. Therefore, this order should not be construed as any opinion 2 on the validity of Plaintiff’s underlying claims.1 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. 5 2. The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit 6 7 Plaintiff’s in forma status is revoked; Court of Appeals. Dated: March 31, 2014 8 9 Troy L. Nunley United States District Judge 10 11 Arm1054.or 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Indeed, Plaintiff’s allegation that he has been subjected to race-based lockdowns in violation of equal protection clause is at issue in the pending putative class action Mitchell v. Cate, No. 2:08cv-01196 (E.D. Cal.). 2

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