Clemons v. Anderson et al

Filing 51

ORDER re 50 USCA Order, Revoking Plaintiff's in forma pauperis status. Signed by Judge Nandor J. Vadas on 4/15/2016. (njvlc2, COURT STAFF) (Filed on 4/15/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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JOHN LEROY CLEMONS,

Case No. 15-cv-02966-NJV

Plaintiff,
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v.

ORDER REVOKING PLAINTIFF'S
IN FORMA PAUPERIS STATUS

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DON ANDERSON, et al.,

United States District Court
Northern District of California

Defendants.
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This case, filed by pro se Plaintiff was dismissed on March 9, 2016. On March 29, 2016,

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Plaintiff filed a Notice of Appeal of this court‟s Order of Dismissal and Judgment. (Doc. 47). On

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April 8, 2016, the Court of Appeals for the Ninth Circuit referred the case back to this court for the

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limited purpose of determining whether Plaintiff‟s in forma pauperis status should continue or

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whether the appeal is frivolous or taken in bad faith. (Doc. 50).

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An indigent party who cannot afford the expense of pursuing an appeal may file a motion

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for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Pursuant

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to Federal Rule of Appellate Procedure 24(a), “a party to a district-court action who desires to

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appeal in forma pauperis must file a motion in the district court.” The party must attach an

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affidavit that (1) shows in detail “the party‟s inability to pay or give security for fees and costs,”

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(2) “claims an entitlement to redress,” and (3) “states the issues that the party intends to present on

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appeal.” Fed. R.App. P. 24(a)(1). However, even if a party provides proof of indigence, “an

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appeal may not be taken in forma pauperis 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). “An appeal is in „good faith‟ where it seeks review of any

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issue that is „non-frivolous.‟” Morales v. Tingey, No. C 05-3498 PJH PR, 2013 WL 685208, at *1

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(N.D. Cal. Feb. 25, 2013) (citing Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir.

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2002).
The court finds that Plaintiff‟s appeal is frivolous and taken in bad faith. As discussed in

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the Order of Dismissal (Doc. 43), Plaintiff, despite several extensions and warnings, failed to file

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an amended complaint. Plaintiff‟s original Complaint impermissibly sought this court‟s direct

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intervention into Plaintiff‟s ongoing state criminal prosecution, in violation of the Younger

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Abstention doctrine. See ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758

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(9th Cir. 2014) (“In Younger v. Harris, the Supreme Court reaffirmed the long-standing principle

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that federal courts sitting in equity cannot, absent exceptional circumstances, enjoin pending state

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criminal proceedings.”). Plaintiff‟s repeated failures to file an amended complaint or to respond to

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United States District Court
Northern District of California

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the Motion to Dismiss evidenced Plaintiff‟s unwillingness to prosecute this case outside of his

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requests to have this court “quash” the state criminal charges against him. Plaintiff‟s recent

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letters, filed after Judgment was entered, do nothing to explain why he failed to file an amended

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complaint in the more than two months following the court‟s Order dismissing the original

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Complaint. See Order of January 4, 2016 (Doc. 38). It is clear that Plaintiff only seeks this

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court‟s intervention in his state criminal prosecution.1
Accordingly, Plaintiff‟s appeal of the dismissal of this action is frivolous and taken in bad

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faith and his in forma pauperis status is REVOKED. The Clerk shall forward this Order to the

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Ninth Circuit in case No. 16–15537.
IT IS SO ORDERED.

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Dated: April 15, 2016
______________________________________
NANDOR J. VADAS
United States Magistrate Judge

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Indeed, Plaintiff‟s letter dated March 13, 2016, requests that this court “see how this criminal
matter was brought by named Defendants in a matter that [Plaintiff] had no choice but to accept
the deal . . .” and then goes on to discuss the search of his house that led to his charges.
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN LEROY CLEMONS,

Case No. 15-cv-02966-NJV

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DON ANDERSON, et al.,
Defendants.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee of the U.S. District Court,
Northern District of California.

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That on April 15, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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John Leroy Clemons ID: #41687
San Quentin State Prison
San Quentin, CA 94974

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Dated: April 15, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Robert Illman, Law Clerk to the
Honorable NANDOR J. VADAS
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