Almeida v. Ducart et al

Filing 33

ORDER REVOKING PLAINTIFFS IN FORMA PAUPERIS STATUS. Signed by Judge James Donato on 6/29/17. (lrcS, COURT STAFF) (Filed on 6/29/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS H. ALMEIDA,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-02689-JD

v.
CLARK E. DUCART, et al.,

ORDER REVOKING
PLAINTIFF’S IN FORMA
PAUPERIS STATUS

Defendants.

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983 that

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was dismissed. Plaintiff filed an appeal with the Ninth Circuit and the case has been referred back

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to this Court for the limited purpose of determining whether plaintiff’s in forma pauperis status

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should continue or whether the appeal is frivolous or taken in bad faith.

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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 in

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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.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).

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An issue is “frivolous” if it has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920

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F.2d 614, 617 (9th Cir. 1990).

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The Court granted defendants’ motion to dismiss on the ground that plaintiff’s complaint

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was barred be California’s claim-preclusion doctrine. Plaintiff had previously litigated a state case

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regarding his validation as a gang member which was the subject of this action. This case was

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similar to Furnace v. Giurbino, 838 F.3d 1019, 1024-26 (9th Cir. 2016), where the Ninth Circuit

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held that a prisoner who has litigated a state case regarding the right to be free from unlawful gang

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validation is precluded from brining the claim in a federal § 1983 action. Because the law is well

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settled this appeal is frivolous. Therefore, plaintiff’s in forma pauperis status is REVOKED. The

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Clerk shall forward this Order to the Ninth Circuit in case No. 17-16302.

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IT IS SO ORDERED.
Dated: June 29, 2017

United States District Court
Northern District of California

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS H. ALMEIDA,

Case No. 16-cv-02689-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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CLARK E. DUCART, et al.,
Defendants.

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

United States District Court
Northern District of California

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That on June 29, 2017, 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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Carlos H. Almeida
G30247
P.O. Box 3030
Susanville, CA 96127

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Dated: June 29, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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