Dantzler v. City and County of San Francisco

Filing 72

ORDER by Judge Edward M. Chen Denying 69 Plaintiff's Motion for Leave to Appeal in Forma Pauperis. (emcsec, COURT STAFF) (Filed on 2/9/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EUGENE F. DANTZLER, Plaintiff, 8 9 10 11 Case No. 16-cv-03119-EMC ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS v. CITY AND COUNTY OF SAN FRANCISCO, Docket No. 69 For the Northern District of California United States District Court Defendant. 12 13 Plaintiff Eugene F. Dantzler has moved for permission to appeal in forma pauperis. Mr. 14 Dantzler appears to meet the financial requirements for in forma pauperis status. Nevertheless, 15 “[a]n appeal may not be taken in forma pauperis if . . . it is not taken in good faith,” 28 U.S.C. § 16 1915(a)(3), and courts have held that a frivolous appeal is not taken in good faith. See, e.g., 17 Morris v. Lewis, No. C 10-5640 CRB (PR), 2012 U.S. Dist. LEXIS 60172, at *9 (N.D. Cal. Apr. 18 30, 2012); cf. Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (noting that, “[i]f at 19 least one issue or claim is found to be non-frivolous, leave to proceed in forma pauperis on appeal 20 must be granted for the case as a whole”). The Court finds that Mr. Dantzler‟s appeal is frivolous 21 for the reasons stated in its summary judgment order. Cf. In re Haw. Corp., 796 F.2d 1139, 1144 22 (9th Cir. 1986) (in addressing frivolous appeals in the context of assessing costs and attorney‟s 23 fees, stating that “[a]n appeal is frivolous when the result is obvious or where the arguments are 24 „wholly without merit‟”). Accordingly, Mr. Dantzler‟s motion to proceed in forma pauperis on 25 appeal is hereby DENIED. This ruling does not preclude Mr. Dantzler from asking the Ninth 26 Circuit directly for leave to proceed in forma pauperis. See Fed. R. App. P. 24(a)(5) (providing 27 that “[a] party may file a motion to proceed on appeal in forma pauperis in the court of appeals 28 within 30 days after service of the notice prescribed in Rule 24(a)(4) [i.e., notice to the court of 1 2 3 4 appeals of the district court denial]”). The Clerk of the Court is instructed to immediately provide a copy of this order to the Ninth Circuit. This order disposes of Docket No. 69. 5 6 IT IS SO ORDERED. 7 8 9 10 Dated: February 9, 2018 ______________________________________ EDWARD M. CHEN United States District Judge 12 For the Northern District of California United States District Court 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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