Dicey v. Smith

Filing 21

ORDER signed by Magistrate Judge Allison Claire on 04/04/13 ordering the court finds that plaintiff's appeal is not taken in good faith, and that plaintiff's in forma pauperis status should be revoked. The clerk shall serve a copy of this order on the United States Court of Appeals for the Ninth Circuit (Case No. 13-15593)(cc: USCA-9th circuit). (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERLAN LYNELL DICEY,
Plaintiff,

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No. 2:12-cv-01407 AC P

vs.
OSCAR J. SMITH,
Defendant.

ORDER
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On February 14, 2013, this court dismissed this action for failure to state a claim

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upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and entered

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judgment. ECF Nos. 16, 17. Plaintiff filed a notice of appeal of the judgment. ECF No. 18.

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The Court of Appeals for the Ninth Circuit has now referred this matter back to this court for the

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limited purpose of determining whether in forma pauperis status should continue for the appeal,

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or whether the appeal is frivolous or taken in bad faith. See ECF No. 20.

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The Federal Rules of Appellate Procedure provide as follows:

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[A] party who has been permitted to proceed in an action in the
district court in forma pauperis . . . may proceed on appeal in
forma pauperis without further authorization unless . . . the district
court shall certify that the appeal is not taken in good faith or shall
find that the party is otherwise not entitled so to proceed . . . .

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Fed. R. App. P. 24(a). After review of the record herein, and for the reasons given in the court’s

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August 2, 2012, October 10, 2012, and February 14, 2013 orders, the court finds that plaintiff’s

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appeal is not taken in good faith, and that plaintiff’s in forma pauperis status should be revoked.

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The Clerk shall serve a copy of this order on the United States Court of Appeals
for the Ninth Circuit (Case No. 13-15593).

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IT IS SO ORDERED.
DATED: April 4, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:rb
dice1407.24

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