Davis v. Lefcourt

Filing 18

ORDER REVOKING PLAINTIFFS IN FORMA PAUPERIS STATUS AND DENYING MOTION TO FILE AN AMENDED COMPLAINT by Judge James Donato denying 15 Motion for Leave to File Amended Complaint. (lrcS, COURT STAFF) (Filed on 3/27/2017) Modified on 3/27/2017 (lrcS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN LIMBIRD DAVIS,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-04980-JD

v.
V. ROY LEFCOURT,
Defendant.

ORDER REVOKING
PLAINTIFF’S IN FORMA
PAUPERIS STATUS AND
DENYING MOTION TO FILE AN
AMENDED COMPLAINT
Re: Dkt. No. 15

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Plaintiff, a detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983 that was
dismissed at screening. Plaintiff filed an appeal with the Ninth Circuit and the case has been
referred back to this Court for the limited purpose of determining whether plaintiff’s in forma
pauperis status should continue or whether the appeal is frivolous or taken in bad faith.
An indigent party who cannot afford the expense of pursuing an appeal may file a motion
for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Pursuant
to Federal Rule of Appellate Procedure 24(a), “a party to a district-court action who desires to
appeal in forma pauperis must file a motion in the district court.” The party must attach an
affidavit that (1) shows in detail “the party’s inability to pay or give security for fees and costs,”
(2) “claims an entitlement to redress,” and (3) “states the issues that the party intends to present on
appeal.” Fed. R. App. P. 24(a)(1). However, even if a party provides proof of indigence, “an
appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in
good faith.” 28 U.S.C. § 1915(a)(3). An appeal is in “good faith” where it seeks review of any
issue that is “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).
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).
Plaintiff alleged that his defense attorney did not properly handle his criminal case.

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Plaintiff sought money damages. Plaintiff was given an opportunity to amend but the case was

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dismissed because a public defender does not act under color of state law, an essential element of

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an action under 42 U.S.C. § 1983, when performing a lawyer’s traditional functions, such as

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entering pleas, making motions, objecting at trial, cross-examining witnesses, and making closing

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arguments. Polk County v. Dodson, 454 U.S. 312, 318–19 (1981). A private attorney

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representing a defendant or appellant also is not a state actor. See Simmons v. Sacramento County

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Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003).
Because the law is well settled that his complaint fails to state a claim the appeal is

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United States District Court
Northern District of California

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meritless and frivolous. Therefore, plaintiff’s in forma pauperis status is REVOKED. The Clerk

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shall forward this Order to the Ninth Circuit in case No. 17-15482. Plaintiff’s motion to amend

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(Docket No. 15) is DENIED for the reasons set forth in the prior order and because further

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amendment would be futile.

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IT IS SO ORDERED.
Dated: March 27, 2017

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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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JOHN LIMBIRD DAVIS,

Case No. 16-cv-04980-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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V. ROY LEFCOURT,
Defendant.

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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 March 27, 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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John Limbird Davis
#16664426
850 Bryant Street
San Francisco, CA 94103

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Dated: March 27, 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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