Joseph v. Donahoe et al

Filing 13

ORDER by Magistrate Judge Donna M. Ryu denying 10 Motion for Leave to Appeal in forma pauperis. (dmrlc1, COURT STAFF) (Filed on 10/1/2014) (Additional attachment(s) added on 10/1/2014: # 1 Certificate/Proof of Service) (igS, COURT STAFF). (Additional attachment(s) added on 10/1/2014: # 2 Certificate/Proof of Service) (vlkS, COURT STAFF).

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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 RAFAEL A JOSEPH, 12 No. C-14-02200 DMR Plaintiff(s), No. 14-16873, United States Court of Appeals for the Ninth Circuit 14 PATRICK R DONAHOE, ORDER DENYING IN FORMA PAUPERIS STATUS ON APPEAL 15 Defendant(s). ___________________________________/ 13 v. 16 17 18 On July 9, 2014, the court granted pro se Plaintiff Rafael A. Joseph’s application for leave to 19 proceed in forma pauperis and dismissed his complaint with leave to amend. [Docket No. 5.] 20 Plaintiff timely filed an amended complaint. [Docket No. 6.] Upon review of Plaintiff’s amended 21 complaint, the court found that Plaintiff had not remedied the deficiencies identified in the court’s 22 dismissal order. The court also found that he had failed to state a new claim for breach of fiduciary 23 duty based upon 5 U.S.C. § 2301(b)(2) and that amendment of the claim would be futile. As 24 Plaintiff had been given an opportunity to address the deficiencies in his original claims, the court 25 dismissed the action without prejudice on August 14, 2014. [Docket No. 8.] Plaintiff has appealed 26 from that order, and the Ninth Circuit has referred the matter to this court for the limited purpose of 27 determining whether Plaintiff’s in forma pauperis status should continue for the appeal. [Docket 28 No. 12.] 1 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is 2 not taken in good faith.” 28 U.S.C. § 1915(a)(3). This section is generally construed to mean that 3 an appeal must not be frivolous. See, e.g., Coppedge v. United States, 369 U.S. 438, 445 (1962) 4 (holding that the term “‘good faith’ . . . must be judged by an objective standard” and is 5 demonstrated when appellant seeks review “of any issue not frivolous”); Ellis v. United States, 356 6 U.S. 674, 674 (1958) (noting that “[i]n the absence of some evident improper motive, the applicant’s 7 good faith is established by the presentation of any issue that is not plainly frivolous”); Hooker v. 8 American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (stating that “[i]f at least one issue or claim 9 is found to be non-frivolous, leave to proceed in forma pauperis on appeal must be granted for the Having reviewed this matter, the court concludes there are no valid grounds on which to base 12 an appeal. Accordingly, the court certifies that Plaintiff’s appeal is not taken in good faith pursuant 13 to 28 U.S.C. § 1915(a)(3) and revokes his in forma pauperis status. Circuit. 17 S 16 IT IS SO ORDERED. 18 19 S DISTRICT TE C TA DERED O OR IT IS S Dated: October 1, 2014 . Ryu United States Magistrate Judge RT H ER 22 23 24 25 26 27 28 2 N D IS T IC T R A 21 LI nna M udge Do JM. RYU DONNA NO 20 R NIA 15 The Clerk of the Court is directed to serve a copy of this order on Plaintiff and the Ninth FO 14 UNIT ED For the Northern District of California 11 case as a whole”). RT U O United States District Court 10 OF C

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