Heilman v. Whitten, et al

Filing 53

ORDER signed by District Judge Morrison C. England, Jr. on 11/7/2017 ORDERING that plaintiff's IFP status remains REVOKED. The Clerk is directed to serve a copy of this order on Plaintiff and on the Ninth Circuit Court of Appeals. (cc: USCA) (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS JOHN HEILMAN, 12 13 14 15 No. 2:15-cv-01585-MCE-CKD Plaintiff, v. ORDER A. WHITTEN, et al., Defendants. 16 17 Plaintiff in this action is a prisoner who proceeded without counsel in the district 18 court. The magistrate judge assigned to the case granted Plaintiff’s motion to proceed in 19 forma pauperis (“IFP”) on September 25, 2015. ECF No. 6. On April 29, 2016, 20 Defendants moved to revoke Plaintiff’s IFP status, arguing that Plaintiff had violated the 21 three strikes provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). ECF 22 Nos. 21-22. The magistrate judge agreed that revocation was proper and granted that 23 motion on July 7, 2016. ECF No. 26. 24 Subsequently, on September 28, 2017, the Court dismissed this action with 25 prejudice. ECF No. 47. On October 13, 2017, Plaintiff filed a notice of appeal. ECF No. 26 49. Thereafter, on October 17, 2017, the Ninth Circuit Court of Appeals referred this 27 matter to the district court for the limited purpose of determining whether in forma 28 pauperis status should continue for the appeal, or whether the appeal is frivolous or 1 1 2 taken in bad faith. ECF No. 51. “An appeal may not be taken in forma pauperis if the trial court certifies in writing 3 that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3); see also Hooker v. American 4 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status 5 appropriate where district court finds the appeal to be frivolous). The good faith 6 standard under 28 U.S.C. § 1915 is an objective one. Coppedge v. United States, 369 7 U.S. 438, 445 (1962). A plaintiff satisfies the “good faith” requirement if he or she seeks 8 review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 9 1977) (quoting Coppedge, 369 U.S. at 445). 10 As an initial matter, the Court notes that the July 7, 2016 order from the 11 magistrate judge revoked Plaintiff’s IFP status. ECF No. 26. Therefore, and for the 12 reasons discussed in that order, the Court believes that IFP status is not appropriate on 13 appeal. 14 Moreover, for the reasons stated in the June 19, 2017 findings and 15 recommendations (see ECF No. 42), adopted by the Court on September 29, 2017 (ECF 16 No. 47), the Court finds that the instant appeal is frivolous. The Court thus certifies that 17 Plaintiff’s appeal is not taken in good faith, and—if Plaintiff might otherwise have a claim 18 for IFP status—concludes that any IFP status should not continue for purposes of the 19 appeal. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff’s in forma pauperis status remains REVOKED. 22 2. The Clerk of Court is directed to serve a copy of this order on Plaintiff and on 23 the Ninth Circuit Court of Appeals. 24 IT IS SO ORDERED. 25 Dated: November 7, 2017 26 27 28 2

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