Goolsby v. Jenkins

Filing 54

ORDER signed by District Judge Morrison C. England, Jr. on 11/2/2016 ORDERING that the Court DENIES plaintiff in forma pauperis status on appeal. The Clerk of Court shall serve a copy of this order on the Ninth Circuit Court of Appeals. (cc USCA) (Butolph, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTWONE DORNELL GOOLSBY, Sr.,

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No. 2:15-cv-1919 MCE DB P

Plaintiff,
v.

ORDER

JENKINS,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action seeking relief under 42 U.S.C. § 1983. This matter was dismissed on September 13,

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2016, for failure to exhaust administrative remedies following the undersigned’s adoption in full

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of the magistrate judge’s recommendation to grant defendant’s motion to dismiss. (ECF Nos. 41,

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49.) Plaintiff has since appealed the dismissal of this action. (ECF No. 51.) Following receipt of

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the notice of appeal, the Ninth Circuit 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. (ECF

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No. 53.)

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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). The test for allowing an appeal in forma

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pauperis is easily met; the good faith requirement is satisfied if the appellant seeks review of any

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issue that is not frivolous. Gardner v. Pogue, 558 F.2d 548, 550-51 (9th Cir. 1977) (citing
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Coppedge v. United States, 369 U.S. 438, 445 (1962)) (quotation marks omitted); see also Hooker

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v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-

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frivolous, the appeal must proceed in forma pauperis as a whole). An action is frivolous “where it

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lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In

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other words, the term “frivolous”, as used in § 1915 and when applied to a complaint, “embraces

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not only the inarguable legal conclusion, but also the fanciful factual allegation.” Id.

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Plaintiff’s appeal lacks any arguable basis in law or fact. Plaintiff has conceded that he did

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not exhaust administrative remedies, and the magistrate judge properly determined that plaintiff

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failed to establish any applicable exception to the exhaustion requirement. In his notice of appeal,

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plaintiff does not specify the grounds upon which he is appealing the court’s dismissal of this

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case. Nonetheless, for the reasons set forth in the magistrate judge’s findings and

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recommendations, the undersigned believes plaintiff’s appeal to be frivolous.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

The Court denies plaintiff in forma pauperis status on appeal; and

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2.

The Clerk of Court shall serve a copy of this order on the Ninth Circuit Court of

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Appeals.

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IT IS SO ORDERED.
Dated: November 2, 2016

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