Bontemps v. Barnes, et al

Filing 54

ORDER signed by District Judge Troy L. Nunley on 1/4/2017 DENYING Plaintiff in forma pauperis status on appeal. (cc Ninth Circuit Court of Appeals)(Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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No. 2:12-cv-2249 TLN DB P

Plaintiff,
v.

ORDER

RON BARNES, et al.,
Defendant.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action seeking relief under 42 U.S.C. § 1983. This matter was dismissed on September 23,

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2016, for Plaintiff’s refusal to participate fully in discovery and prosecute this action following

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the undersigned’s adoption in full of the magistrate judge’s recommendation to grant Defendant’s

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motion to dismiss. (ECF Nos. 39, 47.) Plaintiff has since appealed the dismissal of this action.

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(ECF No. 49.) Following receipt of the notice of appeal, the Ninth Circuit referred this matter to

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the District Court for the limited purpose of determining whether in forma pauperis status should

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continue for the appeal. (ECF No. 51.)

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“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it

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is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The test for allowing an appeal in forma

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pauperis is easily met; the good faith requirement is satisfied if the appellant seeks review of any

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issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing
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Coppedge v. United States, 369 U.S. 438, 445 (1962)) (quotation marks omitted); see also

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Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is

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non-frivolous, the appeal must proceed in forma pauperis as a whole). An action is frivolous

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“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325

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(1989). In other words, the term “frivolous”, as used in § 1915 and when applied to a complaint,

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“embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id.

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Plaintiff’s appeal lacks any arguable basis in law or fact. As set out by the previously-

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assigned magistrate judge in the findings and recommendations issued in April, Plaintiff failed to

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respond appropriately to discovery, failed to respond to motions to compel, and failed to comply

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with court orders, despite being given opportunities to do so. (ECF No. 39.) Plaintiff was warned

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that his continued failure to prosecute this action could result in a recommendation that his case

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be dismissed. In his notice of appeal, Plaintiff does not specify the grounds upon which he is

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appealing the Court’s dismissal of this case. Nonetheless, for the reasons set forth in the

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magistrate judge’s findings and recommendations, the undersigned concludes that Plaintiff’s

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appeal is frivolous.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

The Court denies Plaintiff in forma pauperis status on appeal; and

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2.

The Clerk of Court shall serve a copy of this order on the Ninth Circuit Court of

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Appeals.

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Dated: January 4, 2017

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Troy L. Nunley
United States District Judge

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