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)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
JEFFREY ANTHONY FRANKLIN,
Plaintiff,
8
v.
9
10
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
11
12
This is a closed action. Plaintiff, a state prisoner, originally filed this case as a civil action
13
in the Del Norte County Superior Court, Case No. CVUJ13-1181, alleging constitutional
14
violations that occurred during his previous incarceration at Pelican Bay State Prison. Defendants
15
removed the action to federal court on the ground that certain of his claims arose under 42 U.S.C.
16
§ 1983. Summary judgment was granted in favor of Defendants on March 27, 2017. See Dkt. 64.
17
Plaintiff has filed a notice of appeal (dkt. 67), and a motion for leave to proceed in forma pauperis
18
(“IFP”) on appeal (dkts. 71, 72).
19
Defendants paid the district court filing fee upon removing this action to federal court, so
20
Plaintiff was not proceeding IFP in this Court. Plaintiff therefore does need permission to proceed
21
IFP on appeal: Rule 24(a)(3) of the Federal Rules of Appellate Procedure, which provides that a
22
party proceeding IFP in district court may continue in that status on appeal unless the district court
23
certifies that the appeal is not taken in good faith, does not apply. 28 U.S.C. 1915(a)(3), which
24
provides that an appeal may not be taken IFP if the trial court certifies that it is not taken in good
25
faith, does not turn on whether IFP status was granted in district court, so it does apply.
26
Here, because its ruling granting summary judgment was correct, this Court finds that the
27
appeal is not taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3) and is therefore frivolous.
28
See Fed. R. App. P. (“FRAP”) 24(a)(3)(A); Ellis v. United States, 356 U.S. 674, 674-75 (1958);
1
Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002); Gardner v. Pogue, 558 F.2d
2
548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal
3
would not be frivolous). Accordingly, Plaintiff’s motion to proceed IFP on appeal is DENIED.
4
Dkts. 71, 72.
5
The Clerk of the Court shall forthwith notify Plaintiff and the Ninth Circuit Court of
6
Appeals of this Order. See FRAP 24(a)(4). Plaintiff may file a motion for leave to proceed IFP on
7
appeal in the Ninth Circuit within thirty (30) days after service of notice of this Order. See FRAP
8
24(a)(5). Any such motion “must include a copy of the affidavit filed in the district court and the
9
district court’s statement of reasons for its action.” Id.
This Order terminates Docket Nos. 71 and 72.
11
United States District Court
Northern District of California
10
IT IS SO ORDERED.
12
13
14
Dated: September 26, 2017
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?