Scott v. Yellen et al

Filing 14

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS. Signed by Judge Phyllis J. Hamilton on 4/28/2021. (kcS, COURT STAFF) (Filed on 4/28/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 4:21-cv-01519-PJH Document 14 Filed 04/28/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONNIE SCOTT,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 21-cv-01519-PJH
ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS

v.
JANET YELLEN, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed a civil action against a

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governmental entity that was dismissed at screening. Plaintiff filed an appeal with the

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Ninth Circuit, which re-engaged this court for the limited purpose of determining whether

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

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

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pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. §

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1915(a)(3). An appeal is in “good faith” where it seeks review of any issue that is “non-

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

Case 4:21-cv-01519-PJH Document 14 Filed 04/28/21 Page 2 of 2

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“frivolous” if it has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920 F.2d

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614, 617 (9th Cir. 1990).

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In this action, plaintiff seeks court intervention in obtaining his economic impact
payment (“EIP”) pursuant to the Coronavirus Aid, Relief, and Economic Security Act (The

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“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020) and Scholl v. Mnuchin, No. 20-

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cv-5309 PJH, –––F.3d ––– 2020 WL 6065059 (N.D. Cal. Oct. 14, 2020). Plaintiff was

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advised that he was not entitled to relief to the extent he sought the court to compel the

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IRS to provide his EIP. The court in Scholl found that the EIP could not be denied only

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because an individual was incarcerated. However, the court was clear that it took no

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position on whether individual incarcerated plaintiffs were owed the EIP, which is the

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United States District Court
Northern District of California

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relief sought in this case. That responsibility fell to the IRS to make an individual

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determination. More importantly, funds cannot now be distributed pursuant to the

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CARES Act. The CARES Act imposed a deadline of December 31, 2020, for EIPs to be

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made or allowed. That deadline has passed, and no more funds may be issued.

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Plaintiff’s action has no arguable basis in fact or law; therefore, plaintiff’s in forma

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pauperis status is REVOKED. The clerk is requested to forward this order to the Ninth

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Circuit in case No. 21-15750.

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IT IS SO ORDERED.
Dated: April 28, 2021

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/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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