Boisvert v. Lohan et al

Filing 83

ORDER REGARDING ORDER TO SHOW CAUSE AND PLAINITFF'S NOTICE OF APPEAL. Signed by Chief Magistrate Judge Elizabeth D Laporte on 2/22/2013. (Attachments: # 1 Certificate/Proof of Service)(knm, COURT STAFF) (Filed on 2/22/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RENE BOISVERT,
Plaintiff,

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United States District Court
For the Northern District of California

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No. C -12-04263(EDL)
ORDER

v.
LARS LOHAN ET.AL.,
Defendant.

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/

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Plaintiff Rene Boisvert filed his Complaint and Application to Proceed In Forma

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Pauperis on August 13, 2012. Docket No. 1. The application stated that Plaintiff owned a home

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valued over $500,000 and other real property valued at over $100,000, but had been unemployed

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since 2010 and had no income and only about $1000 in the bank. The Court granted in forma

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pauperis status and dismissed his complaint for failure to state a claim. Docket No. 8. Plaintiff

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subsequently filed an amended complaint. Docket No. 9. On December 12, 2012, the Court issued

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an order granting Defendants’ motion to dismiss and motions to strike Plaintiff’s amended

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complaint. Docket No. 70. Plaintiff has filed a notice of appeal to the Ninth Circuit. Docket No.

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74.

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Under Rule 24(a)(3) of the Federal Rules of Appellate Procedure, a party who was permitted

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to proceed in forma pauperis in the district court may proceed on appeal in forma pauperis unless the

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district court certifies that the appeal is not taken in good faith or finds that the party is not otherwise

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entitled to proceed in forma pauperis. The Court has a duty under this rule to certify whether

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Plaintiff is entitled to continue in forma pauperis on appeal. It is questionable whether Plaintiff is

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entitled to proceed in forma pauperis, as he owns significant assets and has financed multiple
lawsuits in both state and federal court arising from the same event.

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In addition, the Court finds that Plaintiff’s appeal is frivolous, and, accordingly, revokes his
in forma pauperis status. Under 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma

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pauperis if the trial court certifies in writing that it is not taken in good faith.” The good faith

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standard is objective. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A plaintiff

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satisfies that good faith requirement when he seeks review of an issue that is “not frivolous.”

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Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445). An

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appeal is frivolous under section 1915 if it lacks any arguable basis in law or fact. Neitzke v.

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Williams, 490 U.S. 319, 325, 327 (1989). For the reasons stated in the Court’s order granting

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defendants’ motion to dismiss and motion to strike under California’s anti-SLAPP law, the Court

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United States District Court
For the Northern District of California

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holds that Plaintiff’s complaint is frivolous. The Court thus certifies that Plaintiff’s appeal is not

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taken in good faith.

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IT IS SO ORDERED.

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Dated: February 22, 2013
ELIZABETH D. LAPORTE
United States Chief Magistrate Judge

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