Goff v. Salinas et al

Filing 29

ORDER signed by Judge Garland E. Burrell, Jr., on 2/20/13 ORDERING that Plaintiff's appeal is not taken in good faith and plaintiff is not entitled to informa pauperis status on appeal. The Clerk shall send a copy of this order to the Ninth Circuit Court of Appeals referencing case number 13-15042. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS L. GOFF,

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Plaintiff,

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No. 2:12-cv-0009 GEB AC P

vs.
M. SALINAS, et al.,

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Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking

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relief under 42 U.S.C. § 1983 on January 3, 2012. On July 26, 2012, this action was dismissed

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for plaintiff’s failure to file an amended complaint. Subsequently, plaintiff filed a Notice of

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Appeal. ECF No. 23. On January 25, 2013, the Ninth Circuit Court of Appeals referred this

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matter to this court for the limited purpose of determining whether in forma pauperis status

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should continue for the appeal or whether the appeal is frivolous or taken in bad faith. ECF No.

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25.

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28 U.S.C. § 1915(a)(3) provides that “an appeal may not be taken in forma

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pauperis if the trial court certifies in writing that it is not taken in good faith.” “The good faith

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requirement is satisfied if the petitioner seeks review of any issue that is ‘not frivolous.’”

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Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge v. United States, 369

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U.S. 438, 445 (1962)). For purposes of section 1915, an appeal is frivolous if it lacks any
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arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).

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In the Notice of Appeal filed January 2, 2013, plaintiff seeks reconsideration of

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order of dismissal for plaintiff’s failure to file an amended complaint, despite the court’s grant of

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plaintiff’s previous requests for extensions of time that provided plaintiff with an additional

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ninety days to file an amended complaint. Plaintiff argues that dismissal was improper because

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he is presently housed at a facility that limits his ability to research his claims and limits his

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access to legal materials.

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In the July 3, 2012 findings and recommendations recommending the dismissal of

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this action, which the undersigned adopted in full on July 26, 2012, the court found plaintiff’s

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assertion that he needed additional time to obtain materials and perform research untenable

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because an amended complaint only requires an amendment of plaintiff’s factual allegations. On

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review, the court concludes that an appeal from the order dismissing this action would be

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frivolous because plaintiff has presented nothing to rebut the court’s conclusion that additional

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research is unnecessary for an amendment of plaintiff’s factual allegations.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s appeal is not taken in good faith and plaintiff is not entitled to in

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forma pauperis status on appeal. See 28 U.S.C. § 1915(a)(3); Federal Rule of Appellate

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Procedure 24(a)(3)(A); and

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2. The Clerk of Court shall send a copy of this order to the Ninth Circuit Court of

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Appeals referencing case number 13-15042.

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Dated: February 20, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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