Perry v. UNITED STATES OF AMERICA et al

Filing 23

ORDER Denying In Forma Pauperis Status on Appeal. Signed by Magistrate Judge Donna M. Ryu on 04/15/2013. (dmrlc1, COURT STAFF) (Filed on 4/15/2013) (Additional attachment(s) added on 4/15/2013: # 1 Certificate/Proof of Service) (ig, COURT STAFF).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

11
For the Northern District of California

United States District Court

10
ANTHONY A. PERRY,

12

Plaintiff,

13
14
15

No. C-12-03534 DMR
No. 13-15538, United States Court of
Appeals for the Ninth Circuit

v.
UNITED STATES OF AMERICA, ET AL.,

ORDER DENYING IN FORMA
PAUPERIS STATUS ON APPEAL

Defendants.

16
___________________________________/
17
18
19

On November 21, 2012, the court granted pro se Plaintiff Anthony A. Perry’s application for

20

leave to proceed in forma pauperis and dismissed his Complaint with leave to amend. [Docket No.

21

9.] Plaintiff’s amended complaint was due by December 10, 2012. Plaintiff sought, and was

22

granted, two extensions of time in which to file his amended complaint, (see Docket Nos. 13, 15),

23

but did not file an amended complaint. On February 7, 2013, the court issued an order to show

24

cause why this matter should not be dismissed for failure to prosecute. [Docket No. 16.]

25

In his February 19, 2013 response to the order to show cause, (see Docket No. 18), Plaintiff

26

did not explain why he did not file a timely amended complaint, nor did he attempt to file an

27

amended complaint. Instead of addressing the defects in his Complaint, Plaintiff discussed

28

1

//

2

//

3

additional alleged harms that he claimed to have experienced since February 8, 2013.1 The

4

additional alleged harms were deficient, as Plaintiff again failed to name the individuals responsible

5

for violating his constitutional rights and failed to allege the specific constitutional rights he claims

6

were violated. Given Plaintiff’s failure to file an amended complaint, despite the court having given

7

him ample opportunities to do so, the court dismissed Plaintiff’s Complaint for failure to prosecute

8

on February 25, 2013. [Docket No. 19.] Plaintiff has appealed from that order, and the Ninth

9

Circuit has referred the matter to this court for the limited purpose of determining whether Plaintiff’s

11
For the Northern District of California

United States District Court

10

in forma pauperis status should continue for the appeal. [Docket No. 22.]
“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is

12

not taken in good faith.” 28 U.S.C. § 1915(a)(3). This section is generally construed to mean that

13

an appeal must not be frivolous. See, e.g., Coppedge v. United States, 369 U.S. 438, 445 (1962)

14

(holding that the term “‘good faith’ . . . must be judged by an objective standard” and is

15

demonstrated when appellant seeks review “of any issue not frivolous”); Ellis v. United States, 356

16

U.S. 674, 674 (1958) (noting that “[i]n the absence of some evident improper motive, the applicant’s

17

good faith is established by the presentation of any issue that is not plainly frivolous”); Hooker v.

18

American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (stating that “[i]f at least one issue or claim

19

is found to be non-frivolous, leave to proceed in forma pauperis on appeal must be granted for the

20

case as a whole”).

21

Having reviewed this matter, the court concludes there are no valid grounds on which to base

22

an appeal. Accordingly, the court certifies that Plaintiff’s appeal is not taken in good faith pursuant

23

to 28 U.S.C. § 1915(a)(3) and revokes his in forma pauperis status.

24
25

The Clerk of the Court is directed to serve a copy of this order on Plaintiff and the Ninth
Circuit.

26
1

27
28

In his statement in response to the court’s order to show cause, Plaintiff alleged additional
incidents of apparent surveillance, including a February 8, 2013 incident involving unidentified “police
agents” sitting next to Plaintiff at a restaurant and a subsequent incident where a police car was parked
next to Plaintiff’s car while he was at a Starbucks. (Pl.’s Statement at 2-3.)

2

DONNA M. RYU
United States Magistrate Judgeu
Ry

ER

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

A

H

7

LI

RT

6

For the Northern District of California

.

onna M
Judge D

NO

5

United States District Court

I

ERED

R NIA

4

ORD
T IS SO

FO

UNIT
ED

Dated: April 15, 2013

RT
U
O

2
3

S DISTRICT
TE
C
TA

IT IS SO ORDERED.

S

1

N

F
D IS T IC T O
R

C