Hurt v. All Sweepstakes Contests

Filing 16

ORDER REVOKING IN FORMA PAUPERIS STATUS. Signed by Judge Edward M. Chen on 11/15/12. (bpf, COURT STAFF) (Filed on 11/15/2012)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 TYRONE HURT, 9 Plaintiff, v. 11 For the Northern District of California United States District Court 10 No. C-12-4187 EMC ALL SWEEPSTAKES CONTESTS, et al., 12 ORDER REVOKING IN FORMA PAUPERIS STATUS Defendant. ___________________________________/ 13 14 15 On August 9, 2012, Plaintiff Tyrone Hurt filed a complaint against “All Sweepstakes 16 Contests, et al., and it’s affiliates.” Plaintiff alleges that Defendants run “erroneous” sweepstakes 17 contests that target African American communities and that violate the Eighth Amendment to the 18 Constitution. On October 18, 2012, this Court dismissed Plaintiff’s complaint with prejudice, 19 finding that “profound factual and legal deficiencies” made it unlikely that Plaintiff could allege any 20 set of facts that would entitle him to relief. Plaintiff has now filed a notice of appeal. 21 The Ninth Circuit has made a referral to this Court for the limited purpose of determining 22 whether in forma pauperis status should continue for the appeal. Title 28 U.S.C. § 1915(a)(3) 23 provides that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing 24 that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Courts have generally construed this to 25 mean that an appeal must not be frivolous. See, e.g., Coppedge v. United States, 369 U.S. 438, 445 26 (1962) (holding “‘good faith’ . . . must be judged by an objective standard”; also noting “good faith” 27 is demonstrated when appellant seeks review “of any issue not frivolous”); Ellis v. United States, 28 356 U.S. 674, 674 (1958) (stating that, “[i]n the absence of some evident improper motive, the 1 applicant’s good faith is established by the presentation of any issue that is not plainly frivolous”); 2 Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (stating that, “[i]f at least one 3 issue or claim is found to be non-frivolous, leave to proceed in forma pauperis on appeal must be 4 granted for the case as a whole”). 5 Plaintiff’s notice of appeal offers no additional facts beyond those offered in his complaint, 6 and offers no legal argument as to how the vague and conclusory allegations of the complaint state a 7 plausible claim under the Eighth Amendment or any other law. Accordingly, this Court concludes 8 that there are no valid grounds on which to base an appeal. This Court thus certifies that Plaintiff’s 9 appeal has not been taken in good faith and revokes his in forma pauperis status. 11 For the Northern District of California United States District Court 10 The Clerk of the Court shall serve a copy of this order both on Plaintiff and on the Ninth Circuit. 12 13 IT IS SO ORDERED. 14 15 Dated: November 15, 2012 16 _________________________ EDWARD M. CHEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 TYRONE HURT, 4 Case Number: CV12-04187 EMC Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 ALL SWEEPSTAKES CONTESTS et al, 7 Defendant. 8 9 11 For the Northern District of California United States District Court 10 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 15, 2012, 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. 13 14 15 16 17 18 Tyrone Hurt 422 Chesapeake Street, SE, #33 Washington, DC 20032 US Ninth Circuit Court of Appeal 95 -7th Street, Box 193939 San Francisco CA 94103-3939 19 20 21 Dated: November 15, 2012 Richard W. Wieking, Clerk By: Betty Lee, Deputy Clerk 22 23 24 25 26 27 28 3

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