Franklin et al v. Lewis et al

Filing 75

ORDER by Judge Yvonne Gonzalez Rogers denying 71 Motion for Leave to Appeal in forma pauperis; denying 72 Motion for Leave to Appeal in forma pauperis. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 9/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEFFREY ANTHONY FRANKLIN,
Plaintiff,

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v.
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Case No. 13-cv-03777-YGR (PR)
ORDER DENYING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS ON APPEAL

G. D. LEWIS, et al.,
Defendants.

United States District Court
Northern District of California

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This is a closed action. Plaintiff, a state prisoner, originally filed this case as a civil action

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in the Del Norte County Superior Court, Case No. CVUJ13-1181, alleging constitutional

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violations that occurred during his previous incarceration at Pelican Bay State Prison. Defendants

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removed the action to federal court on the ground that certain of his claims arose under 42 U.S.C.

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§ 1983. Summary judgment was granted in favor of Defendants on March 27, 2017. See Dkt. 64.

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Plaintiff has filed a notice of appeal (dkt. 67), and a motion for leave to proceed in forma pauperis

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(“IFP”) on appeal (dkts. 71, 72).

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Defendants paid the district court filing fee upon removing this action to federal court, so

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Plaintiff was not proceeding IFP in this Court. Plaintiff therefore does need permission to proceed

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IFP on appeal: Rule 24(a)(3) of the Federal Rules of Appellate Procedure, which provides that a

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party proceeding IFP in district court may continue in that status on appeal unless the district court

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certifies that the appeal is not taken in good faith, does not apply. 28 U.S.C. 1915(a)(3), which

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provides that an appeal may not be taken IFP if the trial court certifies that it is not taken in good

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faith, does not turn on whether IFP status was granted in district court, so it does apply.

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Here, because its ruling granting summary judgment was correct, this Court finds that the

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appeal is not taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3) and is therefore frivolous.

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See Fed. R. App. P. (“FRAP”) 24(a)(3)(A); Ellis v. United States, 356 U.S. 674, 674-75 (1958);

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Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002); Gardner v. Pogue, 558 F.2d

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548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal

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would not be frivolous). Accordingly, Plaintiff’s motion to proceed IFP on appeal is DENIED.

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Dkts. 71, 72.

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The Clerk of the Court shall forthwith notify Plaintiff and the Ninth Circuit Court of

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Appeals of this Order. See FRAP 24(a)(4). Plaintiff may file a motion for leave to proceed IFP on

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appeal in the Ninth Circuit within thirty (30) days after service of notice of this Order. See FRAP

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24(a)(5). Any such motion “must include a copy of the affidavit filed in the district court and the

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district court’s statement of reasons for its action.” Id.
This Order terminates Docket Nos. 71 and 72.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: September 26, 2017
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge

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