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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CARLOS H. ALMEIDA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-02689-JD v. CLARK E. DUCART, et al., ORDER REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS Defendants. 12 13 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983 that 14 was dismissed. Plaintiff filed an appeal with the Ninth Circuit and the case has been referred back 15 to this Court for the limited purpose of determining whether plaintiff’s in forma pauperis status 16 should continue or whether the appeal is frivolous or taken in bad faith. 17 An indigent party who cannot afford the expense of pursuing an appeal may file a motion 18 for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Pursuant 19 to Federal Rule of Appellate Procedure 24(a), “a party to a district-court action who desires to 20 appeal in forma pauperis must file a motion in the district court.” The party must attach an 21 affidavit that (1) shows in detail “the party’s inability to pay or give security for fees and costs,” 22 (2) “claims an entitlement to redress,” and (3) “states the issues that the party intends to present on 23 appeal.” Fed. R. App. P. 24(a)(1). However, even if a party provides proof of indigence, “an 24 appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in 25 good faith.” 28 U.S.C. § 1915(a)(3). An appeal is in “good faith” where it seeks review of any 26 issue that is “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). 27 An issue is “frivolous” if it has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920 28 F.2d 614, 617 (9th Cir. 1990). 1 The Court granted defendants’ motion to dismiss on the ground that plaintiff’s complaint 2 was barred be California’s claim-preclusion doctrine. Plaintiff had previously litigated a state case 3 regarding his validation as a gang member which was the subject of this action. This case was 4 similar to Furnace v. Giurbino, 838 F.3d 1019, 1024-26 (9th Cir. 2016), where the Ninth Circuit 5 held that a prisoner who has litigated a state case regarding the right to be free from unlawful gang 6 validation is precluded from brining the claim in a federal § 1983 action. Because the law is well 7 settled this appeal is frivolous. Therefore, plaintiff’s in forma pauperis status is REVOKED. The 8 Clerk shall forward this Order to the Ninth Circuit in case No. 17-16302. 9 10 IT IS SO ORDERED. Dated: June 29, 2017 United States District Court Northern District of California 11 12 JAMES DONATO United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 CARLOS H. ALMEIDA, Case No. 16-cv-02689-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 CLARK E. DUCART, et al., Defendants. 8 9 10 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 11 12 13 14 15 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. 16 17 18 Carlos H. Almeida G30247 P.O. Box 3030 Susanville, CA 96127 19 20 21 Dated: June 29, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 3

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