George v. Uribe et al

Filing 63

ORDER Revoking Plaintiff's in forma pauperis Status on Appeal. For the reasons discussed above, the Court certifies that Plaintiff's appeal is frivolous and not taken in good faith. Accordingly, it is HEREBY ORDERED that: (1) Plaintiff' ;s in forma pauperis status is REVOKED for purposes of his appeal; and (2) the Clerk of Court is DIRECTED to notify the Ninth Circuit Court of Appeals that the Court certifies, pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure, that Plaintiff's appeal is frivolous and not taken in good faith. Signed by Judge Janis L. Sammartino on 3/8/2013. (USCA Case Number 13-55270. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD EARL GEORGE,

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CASE NO. 11-CV-70 JLS (RBB)
Plaintiff,

ORDER REVOKING
PLAINTIFF’S IN FORMA
PAUPERIS STATUS ON
APPEAL

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(ECF No. 60)

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vs.
D. URIBE, et al.,
Defendants.

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Plaintiff Richard Earl Jones (“Plaintiff”), a California state prisoner proceeding

19 pro se and in forma pauperis, filed his Second Amended Complaint (“SAC”) on May
20 31, 2012, alleging various violations of his constitutional rights. On November 1, 2012,
21 the Court issued an Order to Show Cause notifying Plaintiff that his SAC would be
22 dismissed for failure to serve the Defendants as required by the Federal Rules of Civil
23 Procedure unless Plaintiff filed proof of service upon Defendants by December 20,
24 2012. After Plaintiff failed to do so, the Court issued an Order dismissing the action
25 without prejudice on January 7, 2013. Plaintiff filed a notice of appeal on February 14,
26 2013, (ECF No. 56), and the Ninth Circuit requested the Court determine “whether in
27 forma pauperis status should continue for this appeal or whether the appeal is frivolous
28 or taken in bad faith.” (ECF No. 60.)
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11cv70

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Under 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis

2 if the trial court certifies in writing that it is not taken in good faith.” See Hooker v.
3 American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). The good faith standard is an
4 objective one, and good faith is demonstrated when an individual “seeks appellate
5 review of any issue not frivolous.” See Coppedge v. United States, 369 U.S. 438, 445
6 (1962). For purposes of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable
7 basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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As noted in the Court’s January 7, 2013 Order, Plaintiff’s alleged deprivation of

9 “access to the law library” does not adequately explain his lack of proper service upon
10 Defendants since May 31, 2012.1 Further, although Plaintiff alleges that a signed
11 Inmate Request 22 Form as proof of service, no such form is attached to Plaintiff’s
12 filings, and Plaintiff otherwise fails to address the lack of service. Accordingly,
13 Plaintiff’s appeal is frivolous and his in forma pauperis status should be revoked.
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For the reasons discussed above, the Court certifies that certifies that Plaintiff’s

15 appeal is frivolous and not taken in good faith.

Accordingly, it is HEREBY

16 ORDERED that: (1) Plaintiff’s in forma pauperis status is REVOKED for purposes
17 of his appeal; and (2) the Clerk of Court is DIRECTED to notify the Ninth Circuit
18 Court of Appeals that the Court certifies, pursuant to Rule 24(a)(3)(A) of the Federal
19 Rules of Appellate Procedure, that Plaintiff’s appeal is frivolous and not taken in good
20 faith.
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IT IS SO ORDERED.

22 DATED: March 8, 2013
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Honorable Janis L. Sammartino
United States District Judge

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The Court notes that Plaintiff, despite his alleged lack of resources to properly
serve Defendants, has somehow managed to mail several supplemental filings and
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11cv70