Atterbury v. Varney et al

Filing 45

ORDER REVOKING PLAINTIFF'S IFP STATUS (Illston, Susan) (Filed on 10/15/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DANNY F. ATTERBURY,

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United States District Court
For the Northern District of California

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No. CV 11-4932 SI

Plaintiff,

ORDER REVOKING PLAINTIFF’S IFP
STATUS

v.
MARISSA SANCHEZ, THERESE
VARNEY, LORI BARLO,
MARY MURTAGH, and DOE (HACN)
SUPERVISOR,
Defendants.

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Pro se plaintiff Danny Atterbury brought this action alleging discrimination and retaliation
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related to low-income housing managed by defendants. On August 22, 2012, the Court granted
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defendant’s motion to dismiss without leave to amend and entered judgment against plaintiff. On
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September 12, 2012, the Court denied plaintiff’s motion to alter or amend the judgment. On October
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5, 2012, plaintiff appealed both the dismissal order and denial of his motion to alter or amend the
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judgment to the Ninth Circuit Court of Appeals. On October 15, 2012, the Ninth Circuit referred the
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case back to this Court for the limited purpose of determining whether in forma pauperis (“IFP”) status
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should continue for this appeal, or whether the appeal is frivolous or taken in bad faith. See Referral
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Notice, No. 12-17240, Dkt. 2 (citing 28 U.S.C. § 1915(a)(3); Hooker v. American Airlines, 302 F.3d
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1091, 1092 (9th Cir. 2002) (revocation of forma pauperis status is appropriate where district court finds
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the appeal to be frivolous)).
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The Court dismissed plaintiff’s federal discrimination and retaliation claims because plaintiff
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alleged that the discrimination and retaliation occurred because of his complaints about the unsanitary
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conditions, not because of any handicap or disability. Dkts. 39 at 6-7, 40. The Court dismissed

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plaintiff’s First Amendment retaliation claim because plaintiff failed to adequately allege that defendant

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landlords were acting under color of state law in making housing decisions. Id. at 8. Lacking any

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remaining federal claims, the Court held that there was no basis for federal question jurisdiction and

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noted that any state law claims should be brought in state court. Id. at 9. The Court subsequently denied

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plaintiff’s motion to alter or amend the judgment because the motion was merely a rehashing of earlier

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rejected arguments – namely that defendant landlord’s receipt of federal funds for Section 8 housing

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qualified it as a state actor. See Dkt. 27 at 11-16. Plaintiff has repeatedly shown that his complaint is

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fatally defective, even after he was permitted to amend his complaint. Dkt. 8. The Court now finds that

United States District Court
For the Northern District of California

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the appeal is frivolous, and hereby REVOKES plaintiff’s IFP status.

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IT IS SO ORDERED.

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Dated: October 15, 2012
SUSAN ILLSTON
United States District Judge

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