Zevallos v. Allison et al

Filing 24

ORDER signed by District Judge Troy L. Nunley on 9/16/2021 REVOKING plaintiff's IFP Status on appeal in Case No. 21-16449. (cc 9th Circuit Court of Appeals) (Coll, A)

Case 2:18-cv-01111-TLN-AC Document 24 Filed 09/17/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGEL ZEVALLOS,

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No. 2:18-cv-01111-TLN-AC

Plaintiff,
v.

ORDER

KATHILEEN ALLISON, et al.,
Defendants.

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Plaintiff Angel Zevallos (“Plaintiff”) is a state prisoner, proceeding pro se, with a civil

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rights action pursuant to 42 U.S.C. § 1983. On August 2, 2021, the Court dismissed this action

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and judgment was entered. (ECF Nos. 18, 19.) Plaintiff appealed the judgment to the Ninth

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Circuit Court of Appeals. (ECF No. 20.)

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On September 10, 2021, the Ninth Circuit referred the matter to this Court for the limited

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purpose of determining whether Plaintiff’s in forma pauperis (“IFP”) status should continue on

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appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 23 at 1 (citing 28 U.S.C.

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§ 1915(a)(3); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002)).)

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“An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken

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in good faith.” 28 U.S.C. § 1915(a)(3). “The test for allowing an appeal [IFP] is easily

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met . . . [t]he good faith requirement is satisfied if the [appellant] seeks review of any issue that is

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‘not frivolous.’” Gardner v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quoting Coppedge v.
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Case 2:18-cv-01111-TLN-AC Document 24 Filed 09/17/21 Page 2 of 3
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U.S., 369 U.S. 438 445 (1962)); see also Hooker, 302 F.3d at 1092 (noting that an appeal is taken

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in “good faith” if it seeks review of “non-frivolous” issues and holding that if at least one issue or

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claim is non-frivolous, the appeal must proceed IFP as a whole). An action is frivolous “where it

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lacks an arguable basis in either law or 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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As detailed by the magistrate judge in the June 22, 2021 Findings and Recommendations

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that were subsequently adopted by this Court on August 2, 2021, Plaintiff’s Second Amended

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Complaint (“SAC”) failed to state a claim for a violation of his Eighth Amendment rights. (ECF

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Nos. 16, 18.) The magistrate judge found that Plaintiff was unable to allege sufficient facts to

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state a claim. (See ECF No. 16.) The magistrate judge also found that “Plaintiff ha[d] already

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been given two opportunities to amend the complaint and advised what kind of information he

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needed to provide. Given that the [SAC] is nearly identical to the original, it does not appear that

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further amendment would result in a cognizable claim.” (Id. at 6.) The Court therefore adopted

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the magistrate judge’s recommendation to dismiss the SAC without leave to amend. (ECF No.

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18.) In sum, there are no valid grounds upon which an appeal can be based given that none of the

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arguments Plaintiff presented to this Court are non-frivolous.

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Based on the record before it, the Court finds that Plaintiff’s appeal taken from its August

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2, 2021 Order is frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App.

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P. 24(a)(3)(A); Hooker, 302 F.3d at 1092; Neitzke, 490 U.S. at 325. Plaintiff’s IFP status on

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appeal should therefore be revoked.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s in forma pauperis status on appeal is hereby REVOKED; and

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2. The Clerk of the Court is directed to serve this Order on the Ninth Circuit Court of

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Appeals in Case No. 21-16449.

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Case 2:18-cv-01111-TLN-AC Document 24 Filed 09/17/21 Page 3 of 3
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IT IS SO ORDERED.
Date: September 16, 2021
Troy L. Nunley
United States District Judge

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