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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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RAFAEL A JOSEPH,

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No. C-14-02200 DMR

Plaintiff(s),

No. 14-16873, United States Court of
Appeals for the Ninth Circuit

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PATRICK R DONAHOE,

ORDER DENYING IN FORMA
PAUPERIS STATUS ON APPEAL

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Defendant(s).
___________________________________/

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v.

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On July 9, 2014, the court granted pro se Plaintiff Rafael A. Joseph’s application for leave to

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proceed in forma pauperis and dismissed his complaint with leave to amend. [Docket No. 5.]

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Plaintiff timely filed an amended complaint. [Docket No. 6.] Upon review of Plaintiff’s amended

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complaint, the court found that Plaintiff had not remedied the deficiencies identified in the court’s

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dismissal order. The court also found that he had failed to state a new claim for breach of fiduciary

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duty based upon 5 U.S.C. § 2301(b)(2) and that amendment of the claim would be futile. As

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Plaintiff had been given an opportunity to address the deficiencies in his original claims, the court

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dismissed the action without prejudice on August 14, 2014. [Docket No. 8.] Plaintiff has appealed

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from that order, and the Ninth Circuit has referred the matter to this court for the limited purpose of

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determining whether Plaintiff’s in forma pauperis status should continue for the appeal. [Docket

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No. 12.]

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“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is

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

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

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

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

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

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

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

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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

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

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

Circuit.

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IT IS SO ORDERED.

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S DISTRICT
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DERED

O OR
IT IS S

Dated: October 1, 2014

. Ryu

United States Magistrate Judge

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R NIA

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

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UNIT
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For the Northern District of California

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case as a whole”).

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United States District Court

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OF

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