(PC) Calderon v. Covello

Filing 36

ORDER signed by District Judge Daniel J. Calabretta on 05/09/24, re 35 USCA Memorandum, REVOKING Plaintiff's in forma pauperis status (cc: USCA). (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN CARLOS CALDERON,

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No. 2:23-cv-01974-DJC-DB

Plaintiff - Appellant,
v.

ORDER

P. COVELLO, Warden,
Defendant - Appellee.

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Plaintiff, a state prisoner proceeding in forma pauperis, filed a civil rights action

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pursuant to 42 U.S.C. § 1983 on September 13, 2023. (ECF No. 1.) Plaintiff’s

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complaint was dismissed on October 31, 2023, for failure to state a claim, and Plaintiff

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was granted 30 days to file an amended complaint. (ECF No. 11.) Plaintiff complied,

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filing his amended complaint on November 13, 2023. (ECF No. 17.)

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The Magistrate Judge filed filings and recommendations on November 21,

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2023, recommending Plaintiff’s amended complaint be dismissed without leave to

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amend for failing to state a claim. (ECF No. 18.) This Court adopted those findings

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and recommendations on April 1, 2024, dismissing the amended complaint and

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directing the Clerk of Court to close the case. (ECF No. 29.) Judgment was entered

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that same day. (ECF No. 30.)
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On April 15, 2024, Plaintiff filed a notice of appeal. (ECF No. 32.) The Ninth

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Circuit Court of Appeals referred this matter back to this Court on May 1, 2024, for the

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limited purpose of determining whether in forma pauperis status should continue on

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appeal or whether the appeal is frivolous or taken in bad faith. (ECF No. 35.)

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The Federal Rules of Appellate Procedure provide as follows:

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[A] party who has been permitted to proceed in an action in
the district court in forma pauperis . . . may proceed on
appeal in forma pauperis without further authorization
unless . . . the district court shall certify that the appeal is not
taken in good faith or shall find that the party is otherwise not
entitled so to proceed . . . .

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Fed. R. App. P. 24(a)(3). After review of the record herein, the Court finds that

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Plaintiff’s appeal is frivolous and not taken in good faith.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s in forma pauperis status is

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revoked. See Fed. R. App. P. 24(a)(3); see also Hooker v. American Airlines, 302 F.3d

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1091, 1092 (9th Cir. 2002) (revocation of forma pauperis status is appropriate where

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district court finds the appeal to be frivolous).

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IT IS SO ORDERED.
Dated:

May 9, 2024
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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DJC4–calderon23cv1974.IFPappeal

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