State Bar of California v. Everett

Filing 29

ORDER RE: IN FORMA PAUPERIS STATUS AND CLARIFICATION OF REMAND ORDER (Illston, Susan) (Filed on 5/17/2017) (Additional attachment(s) added on 5/17/2017: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STATE BAR OF CALIFORNIA,
Plaintiff,

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v.

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DANIEL EVERETT,
Defendant.

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United States District Court
Northern District of California

Case No. 17-cv-01716-SI
ORDER RE: IN FORMA PAUPERIS
STATUS AND CLARIFICATION OF
REMAND ORDER
Re: Dkt. No. 27

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The Ninth Circuit referred this matter to the undersigned judge “for the limited purpose of

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determining whether in forma pauperis status should continue for [defendant’s] appeal or whether

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the appeal is frivolous or taken in bad faith.” See Dkt. No. 27 (citing 28 U.S.C § 1915(a)(3);

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

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When a party is proceeding in forma pauperis, the court shall dismiss the action where the

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action or appeal is “frivolous or malicious,” “fails to state a claim on which relief may be

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granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28

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U.S.C. § 1915(e)(2); see also id. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if

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the trial court certifies in writing that it is not taken in good faith.”). For purposes of 28 U.S.C.

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§ 1915, a frivolous claim is one that lacks an arguable basis in either law or fact. Neitzke v.

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Williams, 490 U.S. 319, 325 (1989).
As set forth in Magistrate Judge Ryu’s Report and Recommendation to remand this
case (the “R&R”), Dkt. No. 18, defendant has failed to establish a basis for removal jurisdiction.
Defendant’s objection to the R&R does not convince the Court otherwise.1 See Dkt. No. 25.
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Defendant notified the Court of his intention to file an objection to the R&R, but because
defendant sent the notice by regular mail, the Court received the notice after it had already issued
an order adopting the R&R. See Dkt. Nos. 21, 22. Defendant then filed an objection to the R&R.
Dkt. No. 25. Although filed seventeen days after the R&R, defendant’s objection was timely
under Federal Rule of Civil Procedure 6(d), and accordingly the Court has reviewed and

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While Judge Ryu found defendant’s financial affidavit satisfactory for in forma pauperis status,

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she made no explicit findings regarding frivolousness. However, given Judge Ryu’s finding that

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defendant did not state an adequate basis for removal jurisdiction, defendant’s attempt to proceed

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in federal court on removed state bar proceedings is indeed frivolous. Accordingly, the Court

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finds that revocation of defendant’s in forma pauperis status is warranted.2

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IT IS SO ORDERED.
Dated: May 17, 2017
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SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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considered it. Dkt. No. 25. After reviewing defendant’s objection and the relevant legal
authorities, the Court reaffirms its order remanding this action.
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To the extent defendant no longer intends to proceed with his appeal in forma pauperis,
the Court’s findings of frivolousness are moot.
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