Johnson v. Fong et al

Filing 43

ORDER REVOKING IN FORMA PAUPERIS STATUS ON APPEAL. Signed by Judge Claudia Wilken on 1/23/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PAUL SAMUEL JOHNSON,

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Plaintiff,

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United States District Court
For the Northern District of California

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Appeal No. 11-17896

v.

ORDER REVOKING IN FORMA
PAUPERIS STATUS ON APPEAL

WARDEN FONG, et al.,
Defendants.

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No. C 11-02058 CW (PR)

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The Court granted Plaintiff, a state prisoner proceeding pro
se, leave to proceed in forma pauperis in this civil rights action.
Upon review of the allegations in the complaint, the Court
dismissed the complaint without prejudice and without leave to
amend for the following reasons: (1) Plaintiff's request for the
restoration of credits forfeited as the result of an alleged
unlawful disciplinary hearing is moot because he ultimately was not
assessed any credit loss; (2) even if not moot, such request is not
cognizable in a civil rights action and must be brought in a
petition for a writ of habeas corpus; (3) Heck v. Humphrey, 512
U.S. 477 (1994), bars Plaintiff's damages claim based on the
alleged unconstitutional deprivation of time credits because such
claim necessarily calls into question the lawfulness of the
duration of Plaintiff's sentence; (4) Plaintiff's claim for
injunctive relief to remedy his alleged unlawful conditions of
confinement at San Quentin State Prison (SQSP) is moot, because
Plaintiff no longer is incarcerated there; (5) the allegations in
the complaint, together with the documents attached thereto, show
that Plaintiff did not exhaust administrative remedies with respect
to his SQSP injunctive relief claim prior to his filing the instant

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action.
Subsequently, the Court denied Plaintiff's motion for

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reconsideration.

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United States Court of Appeals for the Ninth Circuit has referred

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the case back to this Court for a determination whether Plaintiff's

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in forma pauperis status should be revoked.

Plaintiff has filed a notice of appeal.

The

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Rule 24(a)(3) of the Federal Rules of Appellate Procedure

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provides that a party granted leave to proceed in forma pauperis in

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the district court may continue in that status on appeal unless the

United States District Court
For the Northern District of California

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district court certifies that the appeal is not taken in good

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faith.

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similarly provides that an appeal may not be taken in forma

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pauperis if the trial court certifies it is not taken in good

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faith.

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United States, 356 U.S. 674, 674-75 (1958); Hooker v. American

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Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (equating "not taken

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in good faith" with "frivolous").

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Section 1915(a)(3) of Title 28 of the United States Code

"Not taken in good faith" means "frivolous."

Ellis v.

For the reasons discussed in the Court's Order dismissing
Plaintiff's claims without prejudice the Court concludes that

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Plaintiff's appeal is not taken in good faith because it is
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frivolous.

Accordingly, Plaintiff's in forma pauperis status is

REVOKED.
The Clerk of the Court shall serve a copy of this Order on
Plaintiff and on the Court of Appeals.
IT IS SO ORDERED.
DATED: 1/23/2012

CLAUDIA WILKEN
United States District Judge
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