Thomas v. Rodriguez et al

Filing 52

ORDER denying Plaintiff's in forma pauperis Status. Consequently, the Court certifies that Plaintiff's appeal is not taken in good, and therefore, Plaintiff's in forma pauperis status should not be continued for purposes of this appea l. Accordingly, the Court hereby revokes Plaintiff's in forma pauperis status. Should Plaintiff wish to pursue an appeal, he must pay the requisite filing fee. In accordance with the Ninth Circuit's 51 referral notice, the Clerk of the Co urt shall forward a copy of this Order to the Ninth Circuit and the parties. Signed by Judge Anthony J. Battaglia on 10/5/2018. (USCA Case Number 18-56238. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

SAMMY THOMAS,

Case No.: 16-cv-2211-AJB-JMA
Plaintiff,

12
13
14

ORDER DENYING PLAINTIFF’S IN
FORMA PAUPERIS STATUS

v.
J. RODRIGUEZ, Correctional Officer,
and P. COLIO, Correctional Officer,

15
16

Defendants.

17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff Sammy William Thomas, a state prisoner proceeding pro se and in forma
pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 on August 29, 2016.
(Doc. No. 1) After a series of motions, Plaintiff filed his Third Amended Complaint
(“TAC”) on October 4, 2017. (Doc. No. 36.) On March 29, 2018, Magistrate Judge Jan M.
Adler issued Reports and Recommendations (“R&R”), recommending that the Court grant
Defendants’ motion to dismiss the TAC for failure to state a claim. (Doc. No. 41.) On June
29, 2018, Plaintiff filed his Objection to the Magistrate Judge’s R&R. (Doc. No. 45.) On
September 4, 2018, the Court adopted the Magistrate Judge’s R&R, overruled Plaintiff’s
objections, and dismissed the action without leave to amend based upon Plaintiff’s failure
to state a claim. (Doc. No. 46.) This occurred only after Plaintiff’s several unsuccessful
attempts to state facts to support a claim.
1
16-cv-2211-AJB-JMA

1

On September 17, 2018, Plaintiff filed a timely notice of appeal. (Doc. No. 48.)

2

Subsequently, the Ninth Circuit has referred the matter to this Court for the limited purpose

3

of determining whether Plaintiff’s in forma pauperis status should continue or whether the

4

appeal is frivolous or taken in bad faith. (Doc. No. 51.)

5

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

6

the trial court certifies in writing that it is not taken in good faith.” An appeal is in “good

7

faith” where it seeks review of any issue that is “non-frivolous.” Hooker v. American

8

Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An action is frivolous where it has “no

9

arguable basis in fact or law.” O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990)

10

(quoting Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987)).

11

Here, there is no arguable basis in fact or law for this appeal. Thus, the appeal is

12

frivolous. Consequently, the Court certifies that Plaintiff’s appeal is not taken in good, and

13

therefore, Plaintiff’s in forma pauperis status should not be continued for purposes of this

14

appeal. Accordingly, the Court hereby revokes Plaintiff’s in forma pauperis status. Should

15

Plaintiff wish to pursue an appeal, he must pay the requisite filing fee.

16

In accordance with the Ninth Circuit’s referral notice, the Clerk of the Court shall

17

forward a copy of this Order to the Ninth Circuit and the parties. (Doc. No. 51.)

18

IT IS SO ORDERED.

19

Dated: October 5, 2018

20
21
22
23
24
25
26
27
28
2
16-cv-2211-AJB-JMA