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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT HENRY BARTNING et al.,

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No. 2:13-cv-1540-MCE-KJN PS

Plaintiffs,
v.

ORDER

OHIO NORTHERN UNIVERSITY, et al.,
Defendants.

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On September 3, 2013, the court dismissed this action without prejudice for improper

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venue pursuant to 28 U.S.C. § 1406(a), or alternatively, pursuant to 28 U.S.C. § 1404(a). (ECF

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No. 6.) On November 4, 2013, plaintiff, who had proceeded without counsel and in forma

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pauperis in the district court, filed a notice of appeal. (ECF No. 8.) Thereafter, on November 5,

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2013, the Ninth Circuit Court of Appeals referred this matter to the district court for the limited

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

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whether the appeal is frivolous or taken in bad faith. (ECF No. 10.)

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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); see also Hooker v. American Airlines, 302

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F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status appropriate where district

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court finds the appeal to be frivolous). The good faith standard under 28 U.S.C. § 1915 is an

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objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). A plaintiff satisfies the
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“good faith” requirement if he or she seeks review of any issue that is “not frivolous.” Gardner v.

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Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445).

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For the reasons stated in the August 7, 2013 findings and recommendations (see ECF No.

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4), and the September 3, 2013 order by the district judge adopting those findings and

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recommendations (ECF No. 6), the court finds that the instant appeal is frivolous. The court thus

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certifies that plaintiff’s appeal is not taken in good faith, and concludes that plaintiff’s in forma

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pauperis status should not continue for purposes of the appeal.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s in forma pauperis status is REVOKED.

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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

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