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)

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