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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?