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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS JOHN HEILMAN,

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No. 2:15-cv-01585-MCE-CKD

Plaintiff,
v.

ORDER

A. WHITTEN, et al.,
Defendants.

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Plaintiff in this action is a prisoner who proceeded without counsel in the district

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court. The magistrate judge assigned to the case granted Plaintiff’s motion to proceed in

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forma pauperis (“IFP”) on September 25, 2015. ECF No. 6. On April 29, 2016,

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Defendants moved to revoke Plaintiff’s IFP status, arguing that Plaintiff had violated the

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three strikes provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). ECF

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Nos. 21-22. The magistrate judge agreed that revocation was proper and granted that

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motion on July 7, 2016. ECF No. 26.

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Subsequently, on September 28, 2017, the Court dismissed this action with

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prejudice. ECF No. 47. On October 13, 2017, Plaintiff filed a notice of appeal. ECF No.

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49. Thereafter, on October 17, 2017, the Ninth Circuit Court of Appeals referred this

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matter to the district court for the limited purpose of determining whether in forma

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pauperis status should continue for the appeal, or whether the appeal is frivolous or
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taken in bad faith. ECF No. 51.
“An appeal may not be taken in forma pauperis if the trial court certifies in writing

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that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3); see also Hooker v. American

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Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status

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appropriate where district court finds the appeal to be frivolous). The good faith

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standard under 28 U.S.C. § 1915 is an objective one. Coppedge v. United States, 369

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U.S. 438, 445 (1962). A plaintiff satisfies the “good faith” requirement if he or she seeks

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review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir.

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1977) (quoting Coppedge, 369 U.S. at 445).

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As an initial matter, the Court notes that the July 7, 2016 order from the

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magistrate judge revoked Plaintiff’s IFP status. ECF No. 26. Therefore, and for the

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reasons discussed in that order, the Court believes that IFP status is not appropriate on

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appeal.

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Moreover, for the reasons stated in the June 19, 2017 findings and

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recommendations (see ECF No. 42), adopted by the Court on September 29, 2017 (ECF

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No. 47), the Court finds that the instant appeal is frivolous. The Court thus certifies that

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Plaintiff’s appeal is not taken in good faith, and—if Plaintiff might otherwise have a claim

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for IFP status—concludes that any IFP status should not continue for purposes of the

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appeal.

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Accordingly, IT IS HEREBY ORDERED that:

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

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2. The Clerk of Court is directed to serve a copy of this order on Plaintiff and on

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the Ninth Circuit Court of Appeals.

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IT IS SO ORDERED.

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Dated: November 7, 2017

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