Rhodes v. Ohta et al

Filing 26

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS. Signed by Judge Phyllis J. Hamilton on 8/7/17. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 8/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAVIN MAURICE RHODES,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-06805-PJH
ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS

v.
SAM OHTA, et al.,
Defendants.

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. §

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1983 that was dismissed at screening. Plaintiff filed an appeal with the Ninth Circuit and

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the case has been referred back to this court for the limited purpose of determining

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whether plaintiff’s in forma pauperis status should continue or whether the appeal is

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frivolous or taken in bad faith.

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An indigent party who cannot afford the expense of pursuing an appeal may file a

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motion for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. §

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1915(a)(1). Pursuant to Federal Rule of Appellate Procedure 24(a), “a party to a district-

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court action who desires to appeal in forma pauperis must file a motion in the district

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court.” The party must attach an affidavit that (1) shows in detail “the party’s inability to

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pay or give security for fees and costs,” (2) “claims an entitlement to redress,” and (3)

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“states the issues that the party intends to present on appeal.” Fed. R. App. P. 24(a)(1).

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However, even if a party provides proof of indigence, “an appeal may not be taken in

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forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28

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U.S.C. § 1915(a)(3). An appeal is in “good faith” where it seeks review of any issue that

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is “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An

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issue is “frivolous” if it has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920

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F.2d 614, 617 (9th Cir. 1990).

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Plaintiff presented many allegations of mistreatment and violations of his rights by

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correctional officers, prison officials, attorneys and judges at two prisons over the course

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of several years. Plaintiff named approximately 58 defendants. He was informed that his

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various complaints failed to comply with Fed. R. Civ. P. 8(a)(2) and that unrelated claims

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against different defendants did not belong in the same action. Plaintiff was repeatedly

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provided an opportunity to focus just on the events that occurred at the prison in this

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district. He was told that unless his final amended complaint only discussed the claims
against the defendants in this district, the case would be dismissed. See McHenry v.

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United States District Court
Northern District of California

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Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). Plaintiff failed to follow the court’s

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instructions and his third amended complaint also included new allegations against the

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undersigned and court staff and plaintiff sought to recuse all federal judges in California.

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The action was dismissed with prejudice as frivolous and malicious and for failure to

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comply with Rule 8 and the court’s instructions. Plaintiff’s appeal is frivolous for these

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same reasons. Therefore, plaintiff’s in forma pauperis status is REVOKED. The Clerk

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shall forward this Order to the Ninth Circuit in case No. 17-16540.

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IT IS SO ORDERED.
Dated: August 7, 2017

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PHYLLIS J. HAMILTON
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAVIN MAURICE RHODES,

Case No. 16-cv-06805-PJH

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SAM OHTA, et al.,
Defendants.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on August 7, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Kavin Maurice Rhodes ID: D-20245
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532-7000

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Dated: August 7, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Kelly Collins, Deputy Clerk to the
Honorable PHYLLIS J. HAMILTON
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