Bartning v. USA KIA/DOW Family Foundation et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 11/7/13 REVOKING plaintiff's in forma pauperis status re 10 Referral Notice. The Clerk of Court is DIRECTED to serve a copy of this order on plaintiff and on the Ninth Circuit of Appeals. (cc: 9th Cir. COA). (Meuleman, A)

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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 VINCENT HENRY BARTNING et al., 12 13 14 15 No. 2:13-cv-1540-MCE-KJN PS Plaintiffs, v. ORDER OHIO NORTHERN UNIVERSITY, et al., Defendants. 16 17 On September 3, 2013, the court dismissed this action without prejudice for improper 18 venue pursuant to 28 U.S.C. § 1406(a), or alternatively, pursuant to 28 U.S.C. § 1404(a). (ECF 19 No. 6.) On November 4, 2013, plaintiff, who had proceeded without counsel and in forma 20 pauperis in the district court, filed a notice of appeal. (ECF No. 8.) Thereafter, on November 5, 21 2013, the Ninth Circuit Court of Appeals referred this matter to the district court for the limited 22 purpose of determining whether in forma pauperis status should continue for the appeal, or 23 whether the appeal is frivolous or taken in bad faith. (ECF No. 10.) 24 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it 25 is not taken in good faith.” 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 26 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status appropriate where district 27 court finds the appeal to be frivolous). The good faith standard under 28 U.S.C. § 1915 is an 28 objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). A plaintiff satisfies the 1 1 “good faith” requirement if he or she seeks review of any issue that is “not frivolous.” Gardner v. 2 Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445). 3 For the reasons stated in the August 7, 2013 findings and recommendations (see ECF No. 4 4), and the September 3, 2013 order by the district judge adopting those findings and 5 recommendations (ECF No. 6), the court finds that the instant appeal is frivolous. The court thus 6 certifies that plaintiff’s appeal is not taken in good faith, and concludes that plaintiff’s in forma 7 pauperis status should not continue for purposes of the appeal. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s in forma pauperis status is REVOKED. 10 11 12 13 2. The Clerk of Court is directed to serve a copy of this order on plaintiff and on the Ninth Circuit Court of Appeals. IT IS SO ORDERED. Dated: November 7, 2013 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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