Riley v. Kernan et al

Filing 59

ORDER Responding to 58 Referral Notice. After review of the record herein, the Court concludes that Plaintiff's appeal lacks any arguable basis in law or fact, and thus is considered as not being taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES Plaintiff's IFP status. The Clerk of the Court is directed to notify the Ninth Circuit Court of Appeals of this Order. Signed by Judge Michael M. Anello on 9/1/2017. (USCA Case Number 17-56298. Order electronically transmitted to the 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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Case No.: 3:16-cv-0405-MMA-JMA

STEVEN E. RILEY,
Plaintiff,

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ORDER RESPONDING TO
REFERRAL NOTICE

vs.

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[Doc. No. 58]

S. KERNAN, et al.,
Defendants.

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Plaintiff Steven E. Riley, a state prisoner proceeding pro se, brought this civil

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rights action pursuant to 42 U.S.C. § 1983, alleging the Secretary of the California

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Department of Corrections and Rehabilitation (“CDCR”) and fourteen prison officials

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violated his constitutional rights by subjecting him to random drug testing, charging him

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with repeated, falsified disciplinary violations, and placing his name on a list of inmates

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required to participate in Alcoholics Anonymous/Narcotics Anonymous programs, based

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on his failure to provide a urine sample. On August 10, 2017, the Court dismissed this

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action. See Doc. No. 53. On August 25, 2017, Plaintiff filed a timely Notice of Appeal.

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See Doc. No. 55.

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The Ninth Circuit Court of Appeals now refers this matter for the “limited purpose
of determining whether in forma pauperis status should continue for this appeal or
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3:16-cv-0405-MMA-JMA

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whether the appeal is frivolous or taken in bad faith.” See Doc. No. 58. Rule 24(a)(3) of

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the Federal Rules of Appellate Procedure provides that a party granted leave to proceed

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in forma pauperis (“IFP”) in district court may continue in that status on appeal unless the

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district court certifies that the appeal is not taken in good faith, which in this context

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means that it is frivolous. See Ellis v. United States, 356 U.S. 674, 674-75 (1958). Title

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28 of the United States Code, section 1915(a)(3), similarly provides that an appeal may

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not be taken IFP if the trial court certifies it is not taken in good faith. For purposes of

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section 1915, an appeal is “frivolous” if it lacks any arguable basis in law or fact. See

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225

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(9th Cir. 1984).
After review of the record herein, the Court concludes that Plaintiff’s appeal lacks

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any arguable basis in law or fact, and thus is considered as not being taken “in good

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faith” pursuant to 28 U.S.C. § 1915(a)(3). Accordingly, the Court hereby REVOKES

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Plaintiff’s IFP status. See Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent

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appellant is permitted to proceed in forma pauperis on appeal only if appeal would not be

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frivolous).

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The Clerk of the Court is directed to notify the Ninth Circuit Court of Appeals of
this Order. See Fed. R. App. P. 24(a)(4).
IT IS SO ORDERED.
DATE: September 1, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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3:16-cv-0405-MMA-JMA