People of the State of California v. Wichelman

Filing 17

ORDER signed by Magistrate Judge Allison Claire on 4/11/14 ORDERING that Defendant's in forma pauperis status is revoked; and The Clerk of the Court is directed to notify the United States Court of Appeals for the Ninth Circuit of this determination pursuant to the appellate court's Referral Notice. (cc USCA)(Becknal, R)

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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 PEOPLE OF THE STATE OF CA., 12 13 14 15 No. 2:13-cv-0091 TLN AC PS Plaintiff, v. ORDER KARL WICHELMAN, Defendant. 16 17 This action was removed on January 16, 2013 from the Sacramento County Superior 18 Court by defendant pursuant to 28 U.S.C. §1331. On that day, defendant also filed an application 19 to proceed in forma pauperis (“IFP”). By order dated March 20, 2013, the application to proceed 20 IFP was granted, and it was recommended that this action be dismissed as improperly removed. 21 This recommendation was based on the finding that, although the caption in both this case and 22 that filed in state court identifies Karl Wichelman as the defendant, he was in fact the party that 23 initiated the lawsuit. See ECF No. 1 at 7-14. The recommendation for dismissal was adopted by 24 the Honorable Troy L. Nunley on March 6, 2014, and this action was dismissed. ECF Nos. 12- 25 13. Defendant thereafter filed a timely appeal. ECF No. 14. 26 On April 11, 2014, the Ninth Circuit Court of Appeals referred this matter to the district 27 court for the limited purpose of determining whether in forma pauperis status should continue for 28 this appeal or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3). 1 1 An appeal is taken in “good faith” where it seeks review of any issue that is “nonfrivolous.” 2 Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An issue is “frivolous” if it 3 has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 4 1990). 5 Here, defendant’s Notice of Appeal reveals his intent to argue that he has standing to 6 challenge unidentified State statutes. Lack of standing was not a basis for the dismissal of this 7 action, however. Defendant has not addressed the court’s conclusion that, notwithstanding the 8 caption of this case, defendant was the filing party in state court and therefore may not remove 9 this case to federal court. See 28 U.S.C. §1441(a). The undersigned, having fully considered the 10 matter, finds that reasonable jurists could not disagree with the district court’s resolution of 11 defendant’s claims, nor could reasonable jurists conclude the issues presented are adequate to 12 deserve encouragement to proceed further. Accordingly, any appeal would be frivolous or taken 13 in bad faith, and defendant’s IFP status should be revoked 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Defendant’s in forma pauperis status is revoked; and 16 2. The Clerk of the Court is directed to notify the United States Court of Appeals for the 17 18 Ninth Circuit of this determination pursuant to the appellate court’s Referral Notice. DATED: April 11, 2014 19 20 21 22 23 24 25 26 27 28 2

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