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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 PAUL SAMUEL JOHNSON, 4 5 6 Plaintiff, 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appeal No. 11-17896 v. ORDER REVOKING IN FORMA PAUPERIS STATUS ON APPEAL WARDEN FONG, et al., Defendants. 7 No. C 11-02058 CW (PR) / 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 1 2 action. Subsequently, the Court denied Plaintiff's motion for 3 reconsideration. 4 United States Court of Appeals for the Ninth Circuit has referred 5 the case back to this Court for a determination whether Plaintiff's 6 in forma pauperis status should be revoked. Plaintiff has filed a notice of appeal. The 7 Rule 24(a)(3) of the Federal Rules of Appellate Procedure 8 provides that a party granted leave to proceed in forma pauperis in 9 the district court may continue in that status on appeal unless the United States District Court For the Northern District of California 10 district court certifies that the appeal is not taken in good 11 faith. 12 similarly provides that an appeal may not be taken in forma 13 pauperis if the trial court certifies it is not taken in good 14 faith. 15 United States, 356 U.S. 674, 674-75 (1958); Hooker v. American 16 Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (equating "not taken 17 in good faith" with "frivolous"). 18 19 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 20 Plaintiff's appeal is not taken in good faith because it is 21 22 23 24 25 26 27 28 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 2

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